author: TAMILIA, Judge:

text:
    533 A.2d 1055
    INDUSTRIAL VALLEY BANK AND TRUST COMPANY v. Harry HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1987.
    Filed Nov. 25, 1987.
    Mark R. Semisch, Willow Grove, for appellant.
    Peter M. McGonigle, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, Harry Howard, appeals from a February 19, 1987 Order of the Court of Common Pleas of Montgomery County which sustained the preliminary objections of the appellee, Industrial Valley Bank and Trust Co. (IVB), and dismissed appellant’s counterclaim with prejudice.

The facts and procedural history of this appeal are as follows. Appellant entered a leasing arrangement with YBH Porshe Audi in August of 1984 for lease of an Audi for a five-year lease term, with total monthly payments in the amount of $37,779, and with an option to purchase the Audi at the end of the term for $13,075.

On April 30, 1986, IVB filed a complaint against appellant, alleging the lease had been assigned to it in return for $48,715.60 consideration. It alleged appellant had not adhered to the agreed obligations because he had returned the car prior to the completion of the lease term, and this placed him in default. At the same time, appellee asserted it had complied with the terms and conditions of the lease. Appellee further claimed $19,911.81 was due and owing to it, it credited appellant with $4,158.49 for payments on the account, $15,690 for sale of the car, $10,248.73 for unearned interest, and added a $237.60 late charge and $1,054.83 interest from August 12, 1985. Additionally, appellee claimed it was entitled to reasonable attorney fees of twenty per cent or $3,932, together with costs of collection, repossession, storage, sale and other charges. Appellee demanded judgment in the amount of $23,893.81 plus the cost of the suit and interest. On June 17, 1986, appellant filed an answer, new matter and counterclaim. In the answer, he denied he was in default of the lease and alleged,

On the contrary, the car was defective and under the ‘lemon law’ Defendant requested that Plaintiff, as the owner, obtain a new car. Plaintiff advised Defendant it would do nothing, that the fact that the car was ‘unrepairable’ was ‘his problem’ and all they wanted was money. Defendant rejudicated [sic] the lease by reason of Plaintiffs breach of duty and contract.

Answer and new matter of appellant, 6/17/86, p. 1.

Appellant further responded IVB had deliberately and consciously breached the agreement by refusing to exercise its rights under the Automobile Lemon Law (73 P.S. § 1951 et seq.), by refusing to provide appellant with a vehicle fit for the purpose for which leased, by refusing to sell the car at its fair market value, by refusing to answer phone calls and letters, and otherwise attempting to coerce appellant by threats to ruin his credit. Appellant also denied the damages sought by IVB, arguing the car, which was valued at $35,000, was “given away” by IVB for $15,690 despite its ability to sell the car at fair market value. Had IVB sold the car at its fair market value, it would have recovered all sums it believed were due it and, moreover, any loss suffered by IVB was self-imposed by reason of its failure to exercise rights under the Lemon Law.

Appellant’s new matter and counterclaim read as follows:

NEW MATTER
8. On February 18, 1985, the Audi automobile, the subject of the lease, was returned to the dealer for repairs. Shortly thereafter it was returned a second time and on April 1st it was returned a third time. [0]n or about April 1st, 1985, Defendant was advised by an employee of the dealer that the car was not repairable. On April 12, 1985, the vehicle was not repaired. On April 12, 1985 the Defendant, by his attorney, confirmed the aforesaid in writing with Plaintiff and requested that it take action under the lemon law. Counsel had already orally requested the same.
9. On April 24, 1985, counsel for Defendant wrote to Plaintiff a second time since the prior letter was not responded to. On that date counsel advised that he assumed Plaintiff was pursuing its rights since only the owner could exercise the privileges of the lemon law.
10. In or about the end of May or early June of 1985, counsel was called by an employee of Plaintiff. Said employee advised counsel that since the first two letters were not certified the bank might deny receiving the same, although said employee admitted to such receipt. The employee, whose name is unknown, then threatened Defendant with a law suit and a bad credit rating.
11. On June 12,1985, that conversation was confirmed in writing by counsel in a letter to the Plaintiff and counsel advised again of Plaintiffs responsibility to utilize the lemon law.
12. On or about June 17, 1985 Plaintiff responded in writing for the first time and did not deny the contents of counsel’s prior letters.
13. The prior history was set forth in writing by letter from counsel to Plaintiff on June 20, 1986. No reply was received.
14. Sometime thereafter Plaintiff gave the car away for $15,000. when it in fact had a market value of $30,000.
15. No attempt to utilize the lemon law was made by Plaintiff. On September 24, 1985, Counsel requested of Plaintiff information regarding what steps Plaintiff took, or why letters were not answered, and again Plaintiff did not reply.
16. Plaintiff’s actions in failing to utilize the lemon law, in failing to sell the vehicle for its fair market value are breaches of its duty and obligations under the lease and law.
17. Defendant rejudicated [sic] the lease by letter dated April 12, 1985, and no response to said letter was made.
18. Plaintiff’s employee expressed a willingness to lie, threatened Defendant with adverse credit ratings, and otherwise demonstrated complete disregard for Defendant and his rights.
19. There is no breach of contract.
20. Plaintiff suffered no loss and if it did it was self-imposed.
COUNTERCLAIM
21. The allegations of Defendant in paragraphs 1-20 are incorporated herein by reference.
22. Defendant was without the use of a vehicle for three weeks as a result of the defect in the leased auto.
23. Defendant’s credit rating has been adversely affected by Plaintiff improperly, deliberately, for the sole purpose of threatening Defendant, placing an adverse notice on Defendant’s credit.
24. As a result Defendant was required to expend sums for the use of a car and has been denied credit under circumstances where such was necessary, all adversely affecting Defendant financially.
WHEREFORE, Defendant asks judgment against Plaintiff in a sum in excess of $20,000.00 together with costs and counsel fees.

Appellee, on August 25, 1986, filed preliminary objections to appellant’s counterclaim, alleging:

2. Paragraph 16(a) and 16(b) of the Lease Agreement, attached as Exhibit “A” to Defendant’s Complaint, provides as follows:
16(a) The Vehicle is subject to the manufacturer’s standard new car warranty. We assign to you all of our rights under that warranty.
16(b) YOU HAVE ORDERED THE VEHICLE WHICH WE ARE LEASING TO YOU. WE MAKE NO REPRESENTATIONS, PROMISES, STATEMENTS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, SUITABILITY OR FITNESS OF THE VEHICLE FOR A PARTICULAR PURPOSE, OR OTHERWISE. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGE, LOSS OR EXPENSE WHICH YOU MAY SUFFER AS THE RESULT OF ANY INADEQUACY OR DEFECT OF THE VEHICLE.
3. Paragraph 30 of the Lease Agreement (Exhibit “A”) provides as follows:
30. GENERAL PROVISIONS: The lease shall be binding upon and benefit the heirs, personal representatives, successors and assigns of the parties, except as otherwise provided. The Lease expresses the entire agreement between you and us. If any provision of the Lease shall be declared illegal or contrary to law, that provision shall be disregarded and the Lease shall continue in full force as though that provision had never been included in this Lease.
4. Defendant has failed to plead the existence of any writing signed by IVB which would allow Defendant to disregard the provisions of paragraph 16(a) and 16(b) of the Lease Agreement.
5. Defendant, therefore, has no cause of action against IVB for any damages resulting from the alleged defect on the vehicle or to act on its rights under the Pennsylvania Automobile Lemon Law since such rights were expressly waived and/or assigned to Defendant.
WHEREFORE, Plaintiff demands that Defendant’s Counterclaim be dismissed for failure to state a cause of action.
Demurrer — Count II
6. The second portion of Defendant’s Counterclaim sounds in defamation and, at paragraph 23, alleges:
23. Defendant’s credit rating has been adversely affected by Plaintiff improperly, deliberately, for the sole purpose of threatening Defendant, placing an adverse notice on Defendant’s credit.
7. Nowhere in Defendant’s Complaint does Defendant allege the defamatory words or content of the alleged defamatory statements or credit rating, the person or persons who made them or to whom the alleged statements were made.
8. Defendant’s Complaint fails to allege with the requisite specificity a cause of action for defamation.
WHEREFORE, IVB demands that Defendant’s Counterclaim be dismissed for failure to state a cause of action.

Appellee’s preliminary objections also contained a motion to strike the counterclaim for failure to conform to the legal requirements for the statement of a cause of action for defamation, and a motion for a more specific pleading, to allege with specificity the allegedly defamatory words attributable to IVB and the facts and circumstances surrounding them. These preliminary objections were sustained by a February 19,1987 Order, and the appellant’s counterclaim was dismissed with prejudice. Appellant filed this timely appeal on February 27, 1987.

On appeal, appellant-lessee argues the preliminary objections of the appellee were improperly sustained and he contends the court erred in its determination that the assignment of warranties clause of the lease agreement includes an assignment of rights under the Lemon Law, and that the disclaimer clause of the lease agreement includes rights under the Lemon Law. He further urges the responsibility of bringing a Lemon Law action rests on the lessor, as the lessor is the purchaser of the car.

After a thorough review of the record and of applicable law, this Court finds appellant’s counterclaim does not state a cause of action for IVB’s failure to bring a Lemon Law action.

In Aetna Electroplating Co., Inc. v. Jenkins, 335 Pa.Super. 283, 484 A.2d 134 (1984), we said:

A preliminary objection in the nature of a demurrer ‘admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences.’ DeSantis v. Swigart, 296 Pa.Super. 283, 286, 442 A.2d 770, 772 (1982). Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant.

Id., 335 Pa.Superior Ct. at 285, 484 A.2d at 135 (citations omitted).

In the case before us, it “appears with certainty” the law will not permit recovery by the appellant from appellee for appellee’s failure to institute a Lemon Law action.

The Lemon Law, 73 P.S. § 1951 et seq., provides:

§ 1954. Repair obligations
(a) Repairs required. — The manufacturer of a new motor vehicle sold and registered in the Commonwealth shall repair or correct, at no cost to the purchaser, a nonconformity which substantially impairs the use, value or safety of said motor vehicle which may occur within a period of one year following the actual delivery of the vehicle to the purchaser, within the first 12,000 miles of use or during the term of the warranty, whichever may first occur.

The right to bring an action rests with purchasers:

§ 1958. Civil cause of action
Any purchaser of a new motor vehicle who suffers any loss due to nonconformity of such vehicle as a result of the manufacturer’s failure to comply with this act may bring a civil action in a court of common pleas and, in addition to other relief, shall be entitled to recover reasonable attorneys’ fees and all court costs.

The Act, at § 1952, defines purchaser as: “Purchaser. A person, or his successors or assigns, who has obtained ownership of a new motor vehicle by transfer or purchase or who has entered into an agreement or contract for the purchase of a new motor vehicle which is used or bought for use primarily for personal, family or household purposes.”

The Pennsylvania Lemon Law does not speak to lessees, nor is there any appellate level case law determining whether a lessee or lessor of a motor vehicle is the purchaser for purposes of the Lemon Law. Our research nationally of all states which have enacted lemons laws, provides scant assistance. To begin with, virtually all of the statutes speak of “consumer” rather than “purchaser”. Tennessee, however, gives a “consumer” a lemon-type action. Tenn. Code Ann. § 55-24-201 et seq. (1987). The Tennessee Code, at § 55-24-201, defines consumer as “the purchaser (other than for purposes of resale) or the lessee of a motor vehicle.” The Code, at § 55-24-204, specifically provides a refund scheme for leased vehicles whereby the lessee receives the lease price less the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle. The Lemon Law of the state of Missouri also places lemon action rights with the consumer of a new motor vehicle. Mo.Ann.Stat. § 407.560 et seq. (Vernon 1985). Missouri defines the term “new motor vehicle” to include demonstrators or lease-purchase vehicles as long as a manufacturer’s warranty was issued as a condition of sale. See also Va.Code § 59.1-207.9 et seq., (1984) which resembles the Missouri treatment, supra. Florida’s act, at Fla.Stat. Ann. § 681.101 et seq. (West 1984), likewise defines “consumer” to include the lessee of a motor vehicle primarily used for personal, family or household purposes.

New York state, in 1986, amended its act to include lessees in the definition of consumer. That Code now reads:

“ ‘Consumer’ means the purchaser, other than for purposes of resale, or the lessee of a motor vehicle normally used for personal, family or household purposes and subject to a manufacturer’s express warranty ...”

N.Y.Gen.Bus.Law § 198-a (Consol.1987). See also id. at 1986 Amendments.

A recent New York Supreme Court case addressed the question of whether the 1986 amendment should be given retroactive application. In that case, a lessee who entered into a lease agreement in 1984 for the lease of a 1984 Maserati brought action against Maserati Automobile, Inc. and others alleging, among other things, that Maserati had breached G.B.L. Section 198-a, the “Lemon Law”. The Court noted:

The New York Lemon Law was amended, effective August 2, 1986, inter alia, to expand the definition of “consumer” to apply to lessess [sic] of automobiles (See 1986 Regular Session Laws, ch. 799). Generally, such substantive amendments are prospective in application, unless the language either expressly or impliedly [sic] requires a retroactive application. See, Statutes Section 51(b). Plaintiff submits no supporting evidence to demonstrate retroactive intent of the legislature. Plaintiffs cited case, Laiosa v. Camelot AMC (Jeep, Ltd.), 113 AD2d 145 [495 N.Y.S.2d 285] (3d Dept.1985), to support retroactive application is distinguishable. In Laiosa the warranty expired in early April 1985, over one (1) year prior to the enactment of the 1986 amendment. Therefore, GBL Section 198-a cannot apply to the March 31, 1984 lease agreement between Regency and Becker; accordingly, the Fifth Clause of Action is dismissed against all defendants, including Maserati.

Stuart Becker & Co. v. Steven Kessler Motor Cars, Inc., 135 Misc.2d 1069, 1073, 1074, 517 N.Y.S.2d 692, 695 (1987).

It appears legislative action is necessary to establish whether lessees or lessors of new motor vehicles have a right to proceed under the Lemon Law and to determine who bears the responsibility of making a claim. Since this Court may only interpret the law as it stands, we find the statute does not provide that the lessor has a right or the responsibility for bringing such a claim, thus appellee IVB committed no breach of any duty as is argued by the appellant in his counterclaim. Appellee would have this Court find the Pennsylvania Lemon Law is an extension of the manufacturer’s warranty, which under the lease is assigned to appellant and, therefore, the Lemon Law is to be pursued by the lessee/appellant, while appellant alleges the lessor/appellee is the owner of the car and it has the duty to proceed. Neither is correct. Neither lessee nor lessor in a lease situation qualifies as a purchaser within the clear meaning of the language in 73 P.S. § 1952. While the lessor retains legal possession, it is not a purchaser for use primarily for personal or household purposes. While the lessee may be using the vehicle for those purposes, he is not a purchaser. The lease contains so many provisions which divide the rights and responsibilities of a purchaser between the lessee and lessor that the application of the Lemon Law is not possible. In the event of “fleet” leases, the problem becomes even more complex.

The preliminary objections of the appellee were, therefore, properly sustained, as the appellant could not have stated a cause of action against IVB on this allegation. If transfer of the warranty triggered the Lemon Law, then appellant was the person qualified to exercise its provisions. If only a purchaser could qualify as having a right to proceed under the Lemon Law, neither appellant nor IVB meet the statutory definition of purchaser. Nor did appellant’s pleadings show he had made out a cause of action in defamation for IVB’s alleged intentional destruction of appellant’s credit rating. To the contrary, any erosion of appellant’s credit was caused by his breach of the lease agreement.

Order affirmed.

      . The appendix in Brooks v. Ford Motor Co., et al., 36 Cumberland L.J. 760, 763 lists 32 jurisdictions which have "lemon laws" and the terminology used for purchaser, consumer or buyer.

      . In Brooks v. Ford Motor Co., et al., supra, passing on the applicability of the Lemon Law to a lease of an automobile with option to purchase, the Cumberland County court found the lessee to be covered by the Lemon Law as a "purchaser” within the meaning of the Uniform Commerical Code, the Magnason-Moss Warranty Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. The rationale hinges on the transfer and interpretation of the new car warranty, similar to the rationale employed in Henderson v. Benson-Hartman Motors, Inc., 33 Pa.D. & C.3d 6 (Allegheny, 1983), wherein it was held that warranties apply to leases as well as to purchases. The Lemon Law is not derivative of or subject to the new car warranty but is a unique and specific piece of legislation that is independent of the warranty.

      . This case, while resolvable without determining the meaning of the term "purchaser” and whether it incorporates a lease with option to purchase, calls out for legislative action to resolve any possible ambiguity in that term, similar to legislation in our sister states of Tennessee, Missouri, Florida and New York, which includes lessee in the term "consumer". We are constrained to go further than the plain language of the statute. In Molineux v. Reed, 516 Pa. 403 n. 4, 532 A.2d 792 n. 4 (1987), the Supreme Court, speaking of a discovery rule construed by this Court, held: “We do not think Appellee’s attorneys were entitled to rely on Superior Court’s creation of such a grace period, directly contrary to the precise wording of the statute, unless and until this Court gave its approval." We are, therefore, reluctant to extend the term "purchaser" in the context of this case.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    533 A.2d 1060
    COMMONWEALTH of Pennsylvania, Appellee, v. James R. McPHERSON, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1987.
    Filed Nov. 27, 1987.

      John Sughrue, Clearfield, for appellant.
    Leslie A. Hoffman, Assistant District Attorney, Clear-field, for Com., appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant James R. McPherson was arrested and charged with driving under the influence of alcohol. These two appeals are taken from the denial of appellant’s “Application for Dismissal of Prosecution with Prejudice and for Discharge of Defendant” and from the judgment of sentence imposed upon appellant’s conviction. We quash the appeal from the denial of the application to dismiss and affirm the judgment of sentence.

Appellant’s first trial resulted in a hung jury. A second trial was scheduled for November 5,1984. On November 1, appellant filed an “Application for Dismissal of Prosecution with Prejudice and for Discharge of Defendant,” which alleged violations of Pa.R.Crim.P. 1100. On November 5, when the case was called for trial, appellant sought a ruling on this application. The trial court denied the motion and ordered the case to trial. Appellant filed a notice of appeal from that denial on November 5. The case proceeded to trial and appellant was convicted. Post-trial motions were denied and appellant was sentenced to five months to two years imprisonment. Appellant filed a direct appeal from the judgment of sentence.

Initially, we must determine whether the appeal from the denial of appellant’s “Application” is properly before us. It is well-established that a criminal defendant may take an appeal only from the judgment of sentence. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970); Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966). An appeal from any prior order must be quashed. Commonwealth v. Myers, supra. Appellant seeks to avoid this result by arguing that his appeal falls under the exception listed in Pa.R.A.P. 311(a)(5). This section provides that an interlocutory appeal as of right may be taken where an order awards a new trial and the defendant claims that the proper disposition of the matter would be absolute discharge. Such is not the case here as there is no order awarding a new trial. We must disagree with appellant’s argument that the grant of a mistrial due to a deadlocked jury is the equivalent of an award of a new trial. When a mistrial is declared due to a deadlocked jury, no award of a new trial is necessary as retrial follows as of course. We conclude therefore that the appeal at 1458 Pittsburgh 1984 must be quashed as interlocutory. We turn then to the issues raised in the appeal from the judgment of sentence.

Appellant first contends that the trial court erred in ordering the case to trial after appellant had perfected his appeal from the denial of his motion for dismissal. The Rules of Appellate Procedure authorize the trial court to “proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal____” Pa.R.A.P. 1701(b)(6). Clearly, an order refusing to dismiss a case on Rule 1100 grounds is a nonappealable interlocutory order. Commonwealth v. Bennett, 236 Pa.Super. 509, 345 A.2d 754 (1975). Appellant’s attempt to bring this case within the exception of Pa.R.A.P. 331(a)(5) is unavailing as explained above. Therefore, the trial court did not act improperly in proceeding to trial while the appeal from the denial of the motion to dismiss was pending.

Appellant next contends that the extensions of time to commence trial, pursuant to Pa.R.Crim.P. 1100, were improperly granted. Appellant argues that the Commonwealth did not prove the allegations set forth in its various Petitions for Extension of Time. In support of his argument, appellant cites the memorandum opinion and order in Commonwealth v. Bond, 354 Pa.Super. 623, 508 A.2d 338 (1986), in which a panel of this court found that the Commonwealth had not adequately proved that the backlog of cases in Clearfield County prevented the Commonwealth from trying appellant within the Rule 1100 time constraints. The Commonwealth argues that the traditional hearing requirements are unnecessary in counties which have only one judge who can take judicial notice of his own court calendar. Our Supreme Court has recently reversed this court’s order in Commonwealth v. Bond, 516 Pa. 171, 532 A.2d 339 (1987). In so doing, three Justices joined the Opinion Announcing the Judgment of the Court, which accepted this argument, stating:

It would be both legally frivolous and intellectually foolish to insist upon an application of hypertechnical hearing procedures where the judge is the only judicial officer in town and would be forced to engage in questioning for which he already knew the answers.
Id., 516 Pa. 179, 532 A.2d at 343.

Justice Larson, while disagreeing with this argument, believed that the decision was consistent with the plurality opinion of Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 499 A.2d 381 (1985), allocatur denied, 515 Pa. 575, 527 A.2d 536 (1987), which held that a defendant’s general denial of due diligence admits all well-pleaded facts which are not specifically denied and preserves only the issue of whether those facts are sufficient to show due diligence as a matter of law.

In the instant case, appellant did not deny that the Commonwealth was unable to try him without obtaining Rule 1100 extensions. Rather, the thrust of his argument in the court below was that the Commonwealth did not take any steps to secure additional judges and courtrooms or additional criminal court terms in order to cope with the backlog. Thus, under either of the rationales expressed in Bond, supra, appellant is not entitled to discharge.

Finally, appellant contends that the evidence was insufficient to sustain his conviction. The evidence presented at trial reveals that appellant arrived at a convenience store and ordered gasoline. Although he paid the clerk for the gasoline, appellant did not put any gas into his motorcycle. He then walked the motorcycle through an intersection and proceeded downhill, weaving the cycle from side to side. The officer who observed him testified that appellant had his feet on the cycle, not the ground, as he proceeded downhill. The officer was unable to state whether the motorcycle ever actually started or whether it coasted down the hill without power. We are unable to agree with appellant’s claim that he could not be convicted of driving under the influence under these facts. With the exception of starting the engine, appellant’s actions were no different, and no less dangerous, than if the engine had been started. The vehicle was in motion and appellant was controlling its movement. Further, the jury could infer from the above facts that the motorcycle was operating sufficiently to permit appellant to arrive at the convenience store in the first place. See, Commonwealth v. Matsinger, 288 Pa.Super. 271, 431 A.2d 1043 (1981).

Appeal at No. 1458 Pittsburgh 1984 is quashed. Judgment of sentence affirmed.

      . Appellant preserved the issues raised in the first appeal in his post-trial motions and his appeal from the judgment of sentence.

      . We note that appellant relies on the case of Commonwealth v. Hollis, 304 Pa.Super. 1, 450 A.2d 70 (1982), for the proposition that once an appeal is filed, the trial court is without jurisdiction to proceed further. That case is inapposite to the instant case because it took place prior to September 15, 1983, the effective date of Pa.R.A.P. 1701(b)(6).

      . These extensions refer to appellant’s first trial. The second trial was commenced in accordance with the time limits of the Rule. See, Commonwealth v. Hensley, 295 Pa.Super. 225, 441 A.2d 431 (1982).

      . We call counsel’s attention to the fact that memorandum opinions of this court are not to be considered precedent and cannot be cited by parties for any purpose. Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986); K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981).

      . Justice McDermott concurred in the result without setting forth whether he agreed or disagreed with the rationale set forth in the Opinion Announcing the Judgment of the Court.


author: CIRILLO, President Judge:

text:
    533 A.2d 1063
    Armond Cole DUMÉ, Appellant, v. ELKCOM COMPANY, INC., A Corporation, Adams Steel Erection Company, Inc., A Corporation, Burt Hill Kosar Rittleman Associates and Mosites Construction Company, Inc., A Corporation v. MULACH STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1987.
    Filed Nov. 23, 1987.

      Francis C. Rapp, Jr., Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for Mosites, appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from a summary judgment entered by the Court of Common Pleas of Allegheny County against appellant Armond Dumé. We affirm.

On August 17, 1982, the appellant, Armond Dumé, sustained personal injuries in a fall while working on the construction of the Comstock Building in Pittsburgh, Pennsylvania. At the time of the mishap, Dumé was engaged in moving metal decking for the building’s floor support at the request of his employer, Adams Steel Erection Company (Adams). Adams had been retained by the general contractor at the project, Mosites Construction Company (Mosites), to perform various tasks necessary for the completion of the building. Several other subcontractors, which were also named defendants in the instant action, participated in the raising of the structure.

Adams, as appellant’s employer, possessed three separate contractual obligations in its role as subcontractor for Mosites. First, Adams was responsible for the erection of stairwells in the building and all details incident to their completion. Second, Adams was under an obligation to assure that all structural steel was properly supplied and installed. In so doing, Adams subcontracted with Mulach Steel Corporation to provide the structural steel. Last, Adams was required to oversee the installation of the metal decking for the building’s floor support. For this aspect of the construction, Adams subcontracted with the H.H. Robertson Company.

Although the facts indicate that appellant was moving metal decking when the accident occurred, it is unclear which subcontract was being performed by Adams when Dumé fell. It is, however, undisputed that Dumé was performing duties under one of the previously mentioned subcontracts.

Appellant commenced this action on May 1,1985, seeking damages for injuries that were allegedly caused by Mosites’ negligent failure to provide him with a reasonably safe place in which to work. Adams, a named defendant in the suit, was immediately dismissed from the action because of its status as appellant’s employer. Likewise, Mosites maintained that it was the “statutory employer” of appellant, thus entitling it to immunity from tort liability under the Pennsylvania Workmen’s Compensation Act, 77 P.S. § 52. Mosites then sought dismissal from the suit by filing a motion for summary judgment. The motion was briefed by the parties and argued before the trial court. Upon a review of the facts and applicable law, Judge Standish entered an order, accompanied by a memorandum, granting Mosites’ motion for summary judgment. Appellant appeals from the trial court’s adverse judgment and order.

Appellant advances the following issue for our review: whether summary judgment was properly entered in favor of appellee, Mosites Construction Company, on the basis that it was the “statutory employer” of appellant pursuant to the Pennsylvania Workmen’s Compensation Act and consequently immune from common law liability for negligence.

Appellant contends that the trial court erred as a matter of law by granting summary judgment in favor of Mosites. Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b); Zizza v. Dresher Mechanical Contractors, 358 Pa.Super. 600, 518 A.2d 302 (1986), petition for allowance of appeal, (Nos. 1201, 1213 E.D.Alloc.Docket 1986 (Pa. Dec. 29, 1986). When reviewing a trial court’s imposition of summary judgment, we have stated:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (citations omitted). Thus, an appellate court is required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion. Lened Homes v. Department of Licenses and Inspections, 386 Pa. 50, 123 A.2d 406 (1956); Peters Township School Auth. v. United States Fidelity & Guaranty Co., 78 Pa.Commw. 365, 467 A.2d 904 (1983). Applying these principles, we are faced with the resolution of whether the trial court properly concluded that no genuine issue of material fact existed and that appellant’s claim was barred as a matter of law.

Appellant asserts that statutory interpretation of Pennsylvania’s Workmen’s Compensation Act, coupled with applicable case law, negates the conclusion that Mosites fell within the definition of a “statutory employer.” Absent classification as a statutory employer, appellant maintains that Mosites cannot be afforded the benefit of immunity from common law tort liability as provided by the Act. Accordingly, appellant contends that his cause of action was authorized under the law, and summary judgment was erroneously granted by the trial court.

The status of “statutory employer” is defined in the Pennsylvania Workmen’s Compensation Act as follows:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

77 P.S. § 52; Perma-Lite of Pennsylvania, Inc. v. WCAB, 38 Pa.Commw. 481, 393 A.2d 1082 (1978). Our legislature expressly provided for the concept of a statutory employer in an effort to clarify the liability of those employers who would be responsible under the auspices of the Act. Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920). Under the guidelines set forth by the legislature, an employee covered by workmen’s compensation surrenders his right to any other form of damages against his statutory employer. 77 P.S. § 481; Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984), allowance of appeal denied, 332 Pa.Super. 284, 481 A.2d 616 (Pa.1985); see also 1 Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease, § 4.09 (1975).

The seminal Pennsylvania case construing the concept of a “statutory employer” under the Act was our supreme court’s decision in McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930) (construing Act of June 2, 1915, No. 338, § 203, 1915 Pa.Laws 736, 738 (current version at 77 P.S. § 52)). Therein, the court articulated five requirements which must be met by a general contractor in order to acquire the status of a statutory employer:

To create the relation of statutory employer under section 203 of the act, all of the following elements essential to a statutory employer’s liability must be present: (1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

302 Pa. at 294-95, 153 A. at 428. The McDonald criteria have withstood the test of time and are now well-engrained in our jurisprudence. See Zizza, supra; Cranshaw Construction, Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981); Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987).

The parties do not dispute that requirements one, two, four, and five of the McDonald test are satisfied in this case. Thus, this court’s focus turns to the disputed third requirement of McDonald: that the subcontract be made by the employer. Under this requirement, appellant asserts that a direct contractual relationship must exist between the principal contractor and the subcontractor whose employee becomes injured. In so reasoning, appellant argues that if Adams was engaged in the performance of a subcontract with one of the other contractors on the building site at the time of the injury, then Mosites cannot be considered appellant’s statutory employer. Consequently, appellant contends that summary judgment was improper since a genuine issue of material fact existed concerning the question of whether Adams was performing obligations under its subcontract with Mosites at the moment of appellant’s injury.

Addressing appellant’s argument, we first turn to the well-ensconced case of Qualp v. James Stewart Co., supra. In Qualp, a widow of a deceased worker sought workmen’s compensation benefits from the general contractor of a building project. The plaintiff’s husband was employed by a remote subcontractor on the construction site. The general contractor had been unaware of the delegation of the particular task to the decedent’s employer. Here, the court found it imperative to examine the Workmen’s Compensation Act and its purposes in order to determine whether a specific relationship must exist between the general contractor and an employee of a subcontractor before the general contractor is liable for payment of benefits. Reviewing the underlying purposes of the Act, the court stated:

The legislature wanted to definitely fix some responsible party with the obligation of paying compensation to injured workmen, and the party selected was the first whose duty it was to assume control of the work. It selected the first in succession from the owner, believing the owner would contract with none but responsible persons. He was the first in the field and in the contracting scheme of work, the head of the endeavor, the person to whom an employee would naturally look____ The act intended to throw the burden on the man who secured the original contract from the owner to the end that employees of any degree doing work thereunder might always be protected in compensation claims.

266 Pa. at 509, 109 A. at 782. In holding that no immediate contractual relationship with the general contractor was required, the court proclaimed:

The act did not intend to limit the “hiring a laborer” to a “contractor” standing in immediate contractual relation with the employer (original contractor); it intended to include those laborers or employees who did work in furtherance of the employer’s business, who were employed by any one having a lawful right or duty to engage in the business undertaking by the employer____

Id., 266 Pa. at 508, 109 A. at 781 (emphasis added). Thus, the Qualp holding, which remains the law of Pennsylvania today, enunciates that privity of contract is not required between the general contractor and the actual employer of the injured workman for purposes of liability for workmen’s compensation benefits.

Relying upon the reasoning set forth in Qualp, the United States District Court for the Eastern District of Pennsylvania rejected the notion that the general contractor loses common law tort immunity simply because it had insulated itself from liability for payment of benefits by requiring a subcontractor to insure that risk. Fisher v. United States, 299 F.Supp. 1 (E.D.Pa.1969), rev’d in part on other grounds, 441 F.2d 1288 (3d Cir.1971). In Fisher, the court stated as follows:

The prime contractor can be held responsible for Workmen’s Compensation coverage for, and immune from tort suit by, the employee of a second subcontractor, or subcontractor of his immediate subcontractor, on this basis as well. The purpose of these provisions was to benefit the injured workman by definitely fixing some responsible party with the obligation of paying Workmen’s Compensation, and picked the first in succession from the owner on the belief that the owner would be likely to contract only with responsible parties. Where the prime contractor becomes so obligated, the usual Workmen’s Compensation arrangement does not hold between the employee and his immediate employer unless the prime contractor and immediate employer so agree. However, providing the prime contractor does not reject the Workmen’s Compensation Act, if the actual employer does agree to provide Workmen’s Compensation coverage, the prime contractor remains free from tort liability to the injured workman. And if under these circumstances both prime contractor and immediate employer provide Workmen’s Compensation coverage, it is the latter who is obligated to make payment if able.

Id. at 32 (emphasis added, citations omitted). Extrapolating upon this concept, Alexander F. Barbieri, Senior Judge to the Commonwealth Court of Pennsylvania, explains the general contractor’s status as an injured worker’s “statutory employer” under the Act in his treatise on Pennsylvania’s workmen’s compensation law. Judge Barbieri states as follows:

[I]n negligence cases, the general contractor has the full immunity from suit by the employe of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.

1 Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease, § 4.09(3) (1975) (footnotes omitted). This underlying tenet of workmen’s compensation law has been categorically upheld by the Pennsylvania courts. Capozzoli v. Stone & Webster Engineering Corp., 352 Pa. 183, 42 A.2d 524 (1945); Cranshaw, supra; Bartley v. Concrete Masonry Corp., 322 Pa.Super. 207, 469 A.2d 256 (1983) (en banc).

Appellant attempts to diminish the precedential value of the previously mentioned case law through the application of this court’s holding in Stipanovich v. Westinghouse Electric Co., 210 Pa.Super. 98, 231 A.2d 894 (1967). In Stipanovich, Westinghouse was under contract with the Atomic Energy Commission to engage in research and development of matters pertaining to atomic energy. Westinghouse was granted the use and control of the Bettis Atomic Power Laboratory to conduct its research. It then entered into an agreement with Eichleay Corporation for the installation of machinery in the laboratory. Stipanovich, an employee of Eichleay, was injured while participating in the placement of the research machinery in the lab. Stipanovich then instituted a trespass action against Westinghouse seeking recovery for his injuries. Westinghouse responded by raising the defense of its status as a “statutory employer.” Here, Judge Hoffman rejected Westinghouse’s assertion of immunity:

We hold that Westinghouse is not a statutory employer because it has failed to establish that it was, in fact, obligated by contract to perform the activity in which Eichleay was engaged at the time of the accident.

210 Pa.Super. at 104, 231 A.2d at 897. It is critical to note, however, that the courts holding in Stipanovich turned specifically upon the fourth requirement of McDonald: that the work to be performed by the subcontractor be part of the general contractor’s regular course of business. Stipanovich did not construe the third requirement of McDonald, which is at issue here. Consequently, the Stipanovich holding is inapposite to the facts presented at bar.

Applying the holdings of the above-discussed authorities, we find that Mosites would clearly be responsible for the remuneration of workmen’s compensation benefits to a remote subcontractor’s employee absent any express agreement requiring the subcontractor to insure its own workers. Likewise, the delegation of the duty to the subcontractor to insure its own workers does not abolish the general contractor’s tort immunity under the Act. Since the existence of a contractual relationship is not a prerequisite to a general contractor’s obligation to provide workmen’s compensation benefits, it reasonably follows that no contractual relationship need exist between the general contractor and the subcontractor in order for the general contractor to enjoy common law tort immunity under the Act. Mosites, as general contractor, retained secondary or contingent liability for worker’s compensation benefits due the appellant and, conversely, enjoyed the privilege of common law tort immunity afforded by the Act. Accordingly, appellant’s contention that a direct contractual relationship necessarily exist between the general contractor and a subcontractor in order for tort immunity to subsist is meritless.

Having reached this conclusion, we find that the trial court did not err by entering summary judgment in favor of appellee. The trial court correctly deduced that appellee construction company fell squarely within the five requirements enunciated in McDonald to qualify as appellant’s statutory employer. In so finding, the court properly held that no genuine issue of material fact remained and appellee was entitled to summary judgment as a matter of law. Consequently, we affirm the order of the trial court granting Mosites’ motion for summary judgment.

Judgment affirmed.


author: ROWLEY, Judge:

text:
    533 A.2d 1068
    DAVIS SUPERMARKETS, INC. v. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 23, 951 Penn Avenue, Pittsburgh, Pa 15222 and Its Officers, Representatives, Agents and Employees, Individually and/or Acting in Concert with United Food and Commercial Workers, Local 23, Appellants.
    Superior Court of Pennsylvania.
    Argued June 16, 1987.
    Filed Nov. 23, 1987.

      Joseph M. Maurizi, Pittsburgh, for appellants.
    Edward R. Noonan, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   ROWLEY, Judge:

Davis Supermarkets, Inc. (“Davis”), is the owner and operator of a supermarket located in Hempfield Township. The building stands alone and is not part of a plaza or mall. It is separated from the public thorofare by the store’s private parking lot.

On May 23, 1986, appellants, employees and discharged former employees of the store, in conjunction with United Food and Commercial Workers, Local 23 (“Union”), began peaceful picketing and distributing handbills at the store, alleging that Davis was engaged in unfair labor practices.

On May 27, 1986, Davis filed a complaint in equity, alleging that the Union had trespassed and continued to trespass on its property, and seeking a preliminary and permanent injunction. That same day the parties agreed that the court should enter an order limiting the number, placement and activities of the pickets until such time as a hearing on Davis’ request for a preliminary injunction could be held. Pursuant to the agreement such an order was entered and the court scheduled an evidentiary hearing for May 28, 1986.

On May 28, 1986, following the evidentiary hearing, the trial court granted appellee’s request for a preliminary injunction and entered an order further limiting the Union’s activities by inter alia, prohibiting them from picketing on Davis’ property. No appeal was taken from that order. Instead of filing an appeal from the preliminary injunction, the Union filed unfair labor practice charges with the National Labor Relations Board (“NLRB”).

The Union next filed preliminary objections to Davis’ complaint in the trial court arguing that the trial court lacked subject matter jurisdiction because of the NLRB filing. In a supplement to its preliminary objections, the Union further argued that the preliminary injunction, as issued by the trial court, unduly restricted its right to picket.

The trial court, in passing on the preliminary objections, ruled that because the Union did not file its charges with the NLRB until after the Court had issued the preliminary injunction, the Union’s claim of federal preemption should be presented to the federal court and was not properly raised in the state court. The trial court also determined that the restrictions placed on the Union’s picketing in the preliminary injunction were proper. It therefore entered an order dismissing the preliminary objections. This appeal is from that order.

On appeal, the Union presents three issues for our review: 1. whether the trial court failed to comply with the Pennsylvania Anti-Injunction Act; 2. whether the trial court failed to properly accommodate the Union’s section 7 rights under the NLRA; and, 3. whether the trial court proceedings are preempted by the proceedings before the NLRB. However, since the order appealed from is a nonappealable interlocutory order, we do not have jurisdiction to entertain the appeal and are required to quash it.

We begin by noting that it is our responsibility to determine whether an appeal is properly before us. Huber v. Huber, 323 Pa.Super. 530, 470 A.2d 1385 (1984); Indiana County Hospital Authority v. McCarl’s Plumbing & Heating Co., 344 Pa.Super. 226, 496 A.2d 767 (1985). “The appealability of an order goes to the jurisdiction of the appellate court and may be raised sua sponte.” Indiana County Hospital, 344 Pa.Superior Ct. at 228, 496 A.2d at 768 [citing Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983) ]. It is well settled that, unless otherwise permitted by statute, an appeal properly lies only from a final order. A final order is one which effectively ends litigation or disposes of the entire case. Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984).

The order appealed from, the dismissal of appellant’s preliminary objections, neither effectively ends the litigation, nor ends the entire case. Thus, it is not final. While Pa.R.A.P. 311 provides for appeals as a matter of right from certain interlocutory orders, none of those provisions applies to the instant order. Rule 311(a)(4) provides for an appeal from orders which grant, continue, modify, refuse or dissolve injunctions. However, the order in question does none of those things. On the contrary, the order appealed from merely overrules the appellant’s preliminary objections challenging the trial court’s subject matter jurisdiction. Such an order is not appealable. Ratz v. Ratz, 359 Pa.Super. 8, 518 A.2d 317 (1986). Thus we do not have jurisdiction to consider the merits of appellant’s appeal in the posture presented here.

Appeal quashed.

      . We note that there are discrepancies among the parties’ briefs submitted to this Court and the trial court's Opinion regarding the date on which Davis filed its complaint and the parties entered into the agreement which resulted in the original temporary order. According to appellant, the complaint and original order were filed on May 24, 1986; according to Davis and the trial court, Davis applied for a temporary restraining order on May 23, 1986, and the trial court approved the parties’ agreement on May 24, 1986. However, the original record and docket entries, as certified to us by the trial court, show that the filing of the complaint and the original order both occurred on May 27, 1987.

      . Eventually, a complaint was filed by the NLRB charging Davis with violating section 8(a)(1) of the National Labor Relations Act ("NLRA”).


author: CERCONE, Judge:

text:
    533 A.2d 1382
    John RAUCH, Gerald Miklosh, Abbey Alan Kramer, On Behalf of Themselves and All Others Similarly Situated v. UNITED INSTRUMENTS, INC. and Tokyo Aircraft Instrument Co., Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Nov. 30, 1987.

      James D. Crawford, Philadelphia, for appellants.
    Arthur A. Wolk, Philadelphia, for appellees.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order certifying a class action governed by Pennsylvania law. The order being interlocutory, permission to appeal was granted to appellants by this court on September 15, 1986. Presented to us are two questions for review: (1) whether the motion for certification was untimely filed, and (2) whether the trial court erred in certifying a class when it failed to undertake an independent analysis of the criteria necessary to certify a class action. Our resolution of these issues follows a review of the material facts.

On January 24, 1975, appellees commenced an action against appellants alleging that altimeters manufactured by appellant, Tokyo Aircraft Instrument Company, and distributed by appellant, United Instruments, Inc., were defective. By a directive issued by the Federal Aviation Administration (FAA), appellants were required to replace or repair the altimeters to conform to FAA regulations. The cost for removal, repair and reinstallation of each altimeter was approximately $75.00. Appellees’ complaint alleged causes of action in strict tort liability, negligence, breach of the implied warranties of merchantability and fitness for a particular purpose, and fraud.

Appellees had at the same time filed a similar action in the United States District Court for the Eastern District of Pennsylvania. This action was eventually dismissed on December 30, 1976 by the United States Court of Appeals for the Third Circuit on the ground that the Federal Aviation Act did not confer a private right of action for damages on the part of appellees and that the matter was one ordinarily of state concern and therefore governed by state law. See Rauch v. United Instruments, Inc., 548 F.2d 452 (3rd Cir.1976) rev’g 405 F.Supp. 435 (E.D.Pa.1975).

Subsequently, appellees filed an amended complaint in our state lower court on March 17, 1977 which contained class action allegations and a request for punitive damages in addition to their other claims for relief. Appellants’ answer and new matter were filed on July 13, 1978 and the pleadings were closed on August 14,1978. With the exception of two depositions taken in October, 1978, appellees took no discovery until July, 1982. During this period, appellants’ key witness — the vice president of United Instruments who was directly involved in the incidents giving rise to this action — died in June, 1979.

On August 19, 1982, appellants filed a petition for non pros citing appellees’ failure to prosecute their claims, the loss of appellants’ principal witness during this period of inaction, and appellees’ noncompliance with Pennsylvania Rule of Civil Procedure 1707(a) which requires that a motion for class certification be filed within thirty (30) days of the close of the pleadings. Shortly thereafter, appellees filed a motion for class certification on August 23, 1982 requesting the certification of a national class composed of 74,010 persons owning altimeters manufactured and distributed by appellants that had been serviced pursuant to the FAA directive.

The trial court, on October 2, 1985, denied appellants’ petition for non pros. Following a certification hearing, the trial court certified a Pennsylvania class, rather than a national class, on the grounds that a national class was impractical because of the impossibility under conflict of laws principles of determining the applicable state law for each of the 74,010 parties. We granted appellants permission to appeal this determination and turn now to a review of the questions before us.

“The class action was an invention of equity ... mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.” Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir.1948). As to our standard of review of a class certification order, we stated in Cavanaugh v. Allegheny Ludlum Steel Corp., 364 Pa.Super. 437, 528 A.2d 236 (1987), the following principles:

A lower court’s decision concerning class certification is a mixed finding of law and fact entitled to “appropriate deference” upon appeal. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975), on remand, 241 Pa.Superior Ct. 192, 360 A.2d 681 (1976). “Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.” Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Superior Ct. 219, 225 n. 4, 438 A.2d 616, 619 n. 4 (1981). Consequently, a lower court’s order concerning class certification will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them. See, e.g., Sharkus v. Blue Cross of Greater Philadelphia, supra; Klemow v. Time, Inc., supra; Bell v. Beneficial Consumer Discount Co., supra. See also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir.1981).

Id., 364 Pa.Superior Ct. at 442, 528 A.2d at 238 (quoting Janicik v. Prudential Ins. Co. of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982)).

Appellants first contend that the trial court erred in failing to consider appellees’ motion for class certification as untimely. Pennsylvania Rule of Civil Procedure 1707(a) provides:

Within thirty (30) days after the pleadings are closed or within thirty (30) days after the last required pleading was due, the plaintiff shall move that the action be certified as a class action. The court may extend the time for cause shown. If the plaintiff fails to move for certification, the court if so notified shall promptly set a date for a certification hearing.

Pa.R.C.P. No. 1707(a), 42 Pa.C.S.A. Appellants point out that it was four years from August 14, 1978, the date on which the pleadings were closed, until August 23, 1982, the date on which appellees filed their motion for class certification. Additionally, appellants note that appellees did not move for an extension of time for cause shown, as Rule 1707(a) requires and that as a consequence of the four-year delay, appellants were prejudiced by the death of their principal witness. In response to this argument, the trial court stated only that “in the interests of justice this Court is not deciding that issue....”

While we believe that the trial court should have addressed appellants’ assertion, we do not find that the lower court’s failure to do so is dispositive of this case. Appellees’ amended complaint, filed January 21, 1977, in compliance with Pa.R.C.P. No. 1704(b), 42 Pa.C.S.A., contained a separate heading, styled “CLASS ACTION ALLEGATIONS” as well as averments of fact in support of the propriety of a class action. We conclude that the inclusion of a separate heading and the averments asserting the right to proceed as a class action was sufficient to place the trial court on notice that appellees intended to pursue a class action. Rule 1707(a) specifically places an equal and affirmative burden on both the appellee and the court to schedule a certification hearing by providing: “If the plaintiff fails to move for certification, the court if so notified shall promptly set a date for a certification hearing.” Pa.R.C.P. No. 1707(a), 42 Pa.C.S.A. Because the trial court did not set a date for a certification hearing and appellees failed to so move, we will not penalize appellees for their untimeliness by dismissing the order in question on that basis.

Appellants next contend that the trial court erred by failing to independently analyze and determine that a Pennsylvania class should have been certified. Rule 1702 specifies that prerequisites to the maintenance of a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.C.P. No. 1702, 42 Pa.C.S.A. See Janicik v. Prudential Ins. Co. of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982) (courts must “consider the requirements of the rules” before certification of a class action). Following the certification hearing, the court must explicitly analyze in a written opinion the rationale for its decision to certify or not certify a class action:

Rule 1710. Order Certifying or Refusing to Certify a Class Action. Revocation. Amendment. Findings and Conclusions ,
(a) In certifying, refusing to certify or revoking a certification of a class action, the court shall set forth in an opinion accompanying the order the reasons for its decision on the matters specified in Rules 1702, 1708 and 1709, including findings of fact, conclusions of law and appropriate discussion.

Pa.R.C.P. No. 1710(a), 42 Pa.C.S.A.

In the instant case, the trial court fully reviewed and discussed the criteria of Rule 1702 with respect to appellees’ motion for certification of a national class and set forth its reasons for refusing to certify such a class in compliance with Rule 1710(a). The trial court did not, however, comply with Rule 1710(a) when it summarily concluded “that it is appropriate to certify a class whose claims will be governed ‘exclusively’ by Pennsylvania Law.” No independent analysis or discussion of the factors enumerated in Rule 1702 were included by the trial court in its opinion to support its decision to certify a Pennsylvania class. Compliance with Rule 1710(a) is essential as an order certifying or refusing to certify a class is considered final and appealable. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Pa.R.C.P. No. 1710 explanatory note, 42 Pa.C.S.A.

We find that the trial court erred in failing to comply with Rule 1710(a). Accordingly, we remand this case to the trial court for an independent discussion of the reasons which support its certification of a Pennsylvania class.

Jurisdiction relinquished.

      . Rule 1704 provides:
      Rule 1704. Form of the Complaint
      (a) The complaint shall include in its caption the designation "Class Action”.
      (b) The complaint shall contain under a separate heading, styled “Class Action Allegations", averments of fact in support of the prerequisites of Rule 1702 and the criteria specified in Rules 1708 and 1709 on which the plaintiff relies.
      (c) The plaintiff may join in the complaint claims or equitable, declaratory and monetary relief arising out of the same transaction or occurrence or series of transactions or occurrences.
      Pa.R.C.P. No. 1704, 42 Pa.C.S.A.

      . Although appellees’ amended complaint was filed before September 1, 1977, the effective date of Pa.R.C.P. Nos. 1701-1716, 42 Pa.C.S.A., which govern class actions, we find that this action is subject to those rules as appellees’ motion for certification was filed when Rules 1701-1716 were in effect.

      . Rule 1702 makes reference to Pa.R.C.P. No. 1708, 42 Pa.C.S.A., which sets forth considerations relevant to a determination that a class action would be a fair and efficient method of adjudication, and Pa.R.C.P. No. 1709, 42 Pa.C.S.A., which lists those factors necessary to determine whether the class representatives will fairly and efficiently assert and protect the interests of the class.


author: DEL SOLE, Judge:

text:
    533 A.2d 1386
    Peter McREYNOLDS, Appellant, v. BENNER TOWNSHIP, James L. Furgison and American Honda Motor Company, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Nov. 30, 1987.

      Gordon W. Gerber, Philadelphia, for appellant.
    Janet W. Mason, Philadelphia, for Benner, appellee.
    Susan E. Satkowski, Philadelphia, for American Honda, appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from the Order granting Appellee-American Honda Company, Inc.’s petition for a change of venue on the basis of forum non conveniens. See Pa.R.C.P. 1006(d)(1). Appellant instituted this timely appeal pursuant to Pa.R.App.P. 311(c) (an appeal may be taken as of right from an order in a civil action changing venue). Substantively, Appellant alleges that the trial court erred in transferring his personal injuries case from the Philadelphia Court of Common Pleas to the Court of Common Pleas of Centre County.

Although neither party has raised the issue, we may consider sua sponte whether or not we have jurisdiction over this case. Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981). We note that joined as co-defendant in Appellant’s action is Benner Township. By his Complaint, Appellant argued that Benner Township was negligent in the design, engineering, control, supervision, and/or maintenance of Rock Road, the scene of Appellant’s unfortunate accident. This Court, by statute, has exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, except when an appeal falls within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court. See 42 Pa.C.S.A. § 742. We find that we are without jurisdiction to entertain the instant appeal and that this case must be transferred to the Commonwealth Court.

The Commonwealth Court’s appellate jurisdiction from courts of common pleas is limited by 42 Pa.C.S.A. § 762. Subsection (a)(7) of this section pertains to the case sub judice:

(a) General Rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(7) Immunity waiver matters. — Matters in which immunity has been waived pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).

Subchapter C of Chapter 85 of the Judicial Code is the Political Subdivision Tort Claims Act, hereinafter referred to as “the Act”. Brady Contracting Co. v. West Manchester Township Sewer Authority, 338 Pa.Super. 144, 487 A.2d 894-897 (1985). See 42 Pa.C.S.A. § 8541, et seq. The general rule is that local agencies are granted governmental immunity from suits for damages on account of injury to a person or property caused by their acts, or the acts of their employees or other persons. Section 8542(b) provides the circumstances under which governmental immunity is waived:

(b) Acts which may impose liability. — The following act[ ] by a local agency or any of its employees may result in the imposition of liability on a local agency:
(6) Streets.—
(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

In the case at bar, Benner Township is a local agency under the Act. Moreover, it is evident that Appellant’s claim against the Township concerning its negligence with respect to Rock Road falls within the classification of local agency acts for which governmental immunity has been waived. Thus, pursuant to 42 Pa.C.S.A. § 762(a)(7), the Commonwealth Court has exclusive appellate jurisdiction over the disposition of this appeal. Due to the fact that this Court is without jurisdiction to entertain the parties’ arguments, we transfer this case to the Commonwealth Court for its determination of the issue raised. We add that the Commonwealth Court’s jurisdiction of this appeal extends to all parties so long as one party is a local agency and the case is governed at least in part by the Act. Brady, supra, 338 Pa.Superior Ct. at 144, 487 A.2d at 894.

Appeal transferred to the Commonwealth Court.


text:
    533 A.2d 1388
    Diane L. FICHTHORN, Appellee, v. Robert W. FICHTHORN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Nov. 30, 1987.

      Michael J. Rostolsky, Lancaster, for appellant.
    James S. Sorrentino, Lancaster, for appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

Husband and Wife were married on June 7, 1970. The parties separated in August of 1985. Two months later, Wife filed a complaint for support and alimony pendente lite. Following a Domestic Relations Office conference, a Recommendation was filed on December 26, 1986. The Recommendation suggested, inter alia, that Husband be directed to pay $200.00 per week for spousal support, and $350.00 per week for child support. By order of court on December 29, 1986, the Recommendation was adopted by the trial court. Both parties filed exceptions to the Recommendation on January 7, 1987. A hearing was held on February 6, 1987 with reference to the parties’ exceptions. At its conclusion, the trial court dismissed the exceptions and reaffirmed the December 29, 1986 order. Husband’s timely appeal to this Court followed.

By his brief, Husband raises the following issues:

(1) Whether the trial court’s order was confiscatory and was an abuse of discretion;
(2) Whether the trial court erred in concluding that Wife’s earning capacity was minimal in light of her refusal to seek employment; and,
(3) Whether the trial court erred in entering an order for child support when it failed to consider the contributions to support which Wife received from sources other than Husband.

Upon review of the record and the arguments advanced by both parties, we affirm.

Initially, Husband argues that the assessment of the support awards was based on speculations of his future earnings which were not reliable. We shall begin the analysis of the issue with our appellate scope of review. Our standard of review in support cases is limited. If a support order is bolstered by competent evidence, the order will not be reversed absent an abuse of discretion by the trial court. Commonwealth ex rel. Kinsey v. Kinsey, 277 Pa.Super. 156, 419 A.2d 708, 710 (1980). This scope of review applies equally to child support and alimony pendente lite orders. Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324, 325 (1985); Miller v. Miller, 352 Pa.Super. 432, 442-443, 508 A.2d 550, 555 (1986).

Husband complains that the trial court erroneously took into consideration the fact that, during the past few years, he had received substantial bonuses which were in addition to his annual salary. The record shows that Husband’s gross income for the years 1984 through 1986 were $86,-842.00, $95,814.00, and $73,000.00 respectively. Husband contends that the trial court should not have considered the portion of these amounts which represent the bonuses he received since the bonuses were not guaranteed and Husband had no voice in their calculation. In addition, Husband alleges that the payment of the bonuses depended largely on the prosperity of the family-owned hat company for which he worked.

The trial court states in his opinion that the $73,000.00 figure for 1986 was comprised of a base salary of $50,-000.00 and a bonus of $23,000.00. From this it was concluded that “[g]iven the history of said bonuses, the Court believes that $73,000.00 is a realistic indication of Mr. Fichthorn’s earnings”. (Trial Court Opinion, 4). Husband counters by arguing that this figure was inflated and should only have included $50,000.00, which was his guaranteed salary.

We find no abuse of discretion was committed by the trial judge in utilizing $73,000.00 as a base figure for computing the support orders. The trial court correctly recognized and considered the fact that a trend had developed in which Husband had received substantial bonuses. We are mindful of Husband’s contention that the bonuses were speculative. However, in the event that Husband’s future annual incomes markedly decrease, Husband may petition to have the support orders modified or vacated. See Jeffery v. Jeffery, 228 Pa.Super. 64, 296 A.2d 873, 874 (1972) (alimony pendente lite as well as maintenance and support may be modified or vacated by change in circumstances; the awards are always within the control of the trial court).

Next, Husband posits that the trial court erred in concluding that Wife’s earning capacity was minimal when it failed to consider Wife’s refusal to seek employment. From this, Husband infers that the trial court wrongfully assessed Wife’s earning capacity at a low level. We disagree.

Contrary to Husband’s position on the subject, the trial court did not hastily conclude that Wife could not command a substantial salary. Rather, the trial judge explained that there were various factors to be considered in projecting a spouse’s earning capacity such as the party’s age, health, training, time spent out of the job market, and the presence of children under care at home. Instantly, Wife quit her job as a clerk typist shortly after her marriage to Husband in 1970. She did not later reenter the job market inasmuch as she chose to stay home and care for her two daughters on a full-time basis.

The trial court recognized that Wife was attending a business school to refresh and update her secretarial skills. Thus, Wife was attributed with “some earning capacity”. Without assigning a dollar value, though, the trial court stated that Wife’s earning capacity was minimal, given the fact that she had not worked in the job market for 16 years and still had two children at home. Husband avers that the trial court should have taken into consideration the fact that Wife did not actively seek employment while she attended business school. However, we find no abuse of discretion on this point inasmuch as there was testimony that Wife’s status as a full-time student kept her in classes from 9:00 a.m. to 3:00 p.m. weekdays. Further, Wife explained that she expended much energy and time in the care of her children and the various activities in which the two daughters had become involved.

We are of the opinion that the trial court’s observations with respect to Wife’s financial predicament are supported by the record. The trial court did not discount Wife’s earning potential, but merely concluded that it was severely limited: “[cjlearly in the present case, there is a significant difference between the standard of living to which Mrs. Fichthorn has become accustomed and her current earning capacity”. (Trial Court Opinion, 5). Finding no abuse of discretion, we shall not disturb the trial court’s determination on this matter.

Finally, Husband contends that the trial court erred in failing to consider the contributions to the household which Wife received from Husband’s father. The record shows that Wife had received funds from her father-in-law which were used to buy clothing for the children, repair Wife’s car, and pay Wife’s tuition bills. Husband maintains that these monies substantially decreased Wife’s need for support; therefore, they should have been considered by the trial court in assessing Husband’s support payments. However, there was testimony by Wife that she accepted the funds as loans which were to be repaid after she completed her education and began working. Husband points out, though, that Wife did not produce a note or other document acknowledging the debt.

On two grounds we find that no abuse of discretion was committed by the trial court. First, we are mindful that it was the trial court’s prerogative to either believe or disbelieve Wife’s testimony that the contributions were loans. Obviously, the trial court adopted Wife’s characterization of the payments. Second, there was no testimony that Husband’s father would continue to supplement Wife's income. Without some indication to that effect, the trial court would have been remiss in using these payments as a factor when calculating Husband’s support obligations.

Order affirmed. Jurisdiction relinquished.

      . We note that the parties’ exceptions appear to have been untimely filed. Pa.R.C.P. 1910.12(e) states that exceptions to the hearing officer’s report must be filed within ten days after the conclusion of the hearing. Matters not covered by the exceptions are deemed waived unless leave is granted to file exceptions raising those matters. Instantly, the Recommendation was dated December 26, 1986; however, both parties did not file their exceptions until January 7, 1987, 12 days later. Although normally we would consider the parties’ issues on appeal to have been waived, we are mindful that the notice of the Recommendation which was sent to the parties stated that they had until January 9, 1987 to file exceptions. This permitted exceptions to be filed 14 days after the Recommendation. Since the parties obviously relied upon this erroneous representation, we shall excuse the tardiness inasmuch as it was due to the breakdown in the court’s machinery. However, we strongly caution the Domestic Relations Office of Lancaster County that the time constraints promulgated in Rule 1910.12(e) must be strictly complied with in the future.

      . Although the Recommendation originally described the $200.00 payment as spousal support, the trial court in its February 6, 1987 order characterized it as "alimony pendente lite and support of wife”.


author: KELLY, Judge:

text:
    533 A.2d 1391
    COMMONWEALTH of Pennsylvania v. Mary Jane MISER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed Nov. 16, 1987.

      John R. Ryan, Clearfield, for appellant.
    Joseph A. Curcillo, III, Clearfield, Assistant District Attorney, for Com.
    Before BROSKY, TAMILIA and KELLY, JJ.
   KELLY, Judge:

Appellant, Mary Jane Misc., appeals from an order dated March 26,1986 revoking probation and sentencing appellant to incarceration for a period of five to ten years. We vacate judgment of sentence and remand.

Appellant was charged and plead guilty to criminally conspiring to violate the Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.S.A. § 780-113(a)(30). The maximum penalty for such offense is five years incarceration. Appellant was sentenced on May 15,1978 to a term of three years probation.

Appellant's probation was revoked on February 15, 1979, upon a finding that she had violated the terms of her probation by committing a subsequent violation of the Act. She was resentenced on June 25, 1979 to a term of ten years probation. On February 20, 1985, appellant was charged with a third violation of the Controlled Substance Act. On February 25, 1986, appellant, acting pro se, filed a motion to modify and/or vacate sentence of June 25, 1979 nunc pro tunc. Court-appointed counsel then filed a motion for reconsideration of both the revocation and the sentence imposed on June 25, 1979. The sentencing judge, on March 26, 1986, issued an order denying the motion and stating that one of the reasons for the imposition of the ten year probation sentence of June 25, 1979 was application of the enhancement provision of the Act, which the court construed as authorizing a new maximum sentence of up to ten years imprisonment. 35 Pa.S.A. § 780-115. The court then proceeded to find appellant in violation of probation, revoked probation, and resentenced appellant to a term of five (5) to ten (10) years incarceration. This sentence was also based upon the court’s construction and application of the enhancement provision of the Act.

This appeal was filed by appellant, acting pro se, on April 22, 1986. On July 3, 1986, the trial court heard argument on the motion for reconsideration of both the order and the sentence filed by appellant’s counsel; on August 12, 1986, the court dismissed that motion. The matter is now properly before this Court for disposition.

Appellant argues that the sentence of June 25, 1979 was illegal in that it imposed an excessive and impermissible period of probation as the court did not state its use of the enhancement provisions on the record at sentencing; she also argues that the court erred in imposing an enlarged sentence on June 25, 1979 where the bill of information failed to contain allegations of appellant’s prior offenses.

These arguments constitute a collateral challenge to the 1979 sentence which we will not entertain. Appellant failed to challenge the June 25, 1979 imposition of sentence by filing a timely motion to modify. Pa.R.Crim.P. 1410. Thus, appellant’s right to challenge on direct appeal the alleged illegality and excessiveness of the sentence imposed and the sentencing court’s failure to state sufficient reasons for the sentence imposed were waived. In order to challenge her 1979 sentence of probation at this late date, appellant must avail herself of the procedures provided by the Post-Conviction Hearing Act. See Commonwealth v. Christian, 302 Pa.Super. 253, 448 A.2d 623 (1982).

However, on this direct appeal from the March 1986 judgment of sentence, we may reach the merits of appellant’s arguments that the March 1986 sentence was illegal. Appellant contends that the maximum sentence to which appellant could have been sentenced was the maximum sentence to which she was originally subject, i.e. a term of five years incarceration. Appellant argues that “a judge upon resentencing stands in the same shoes he occupied at the original sentencing.” (Appellant’s brief at 7). We agree.

The enhancement provision of the Act, Section 15, states that “any person convicted of a second or subsequent offense” under the Act may be subject to an enhanced maximum sentence for that subsequent offense. 35 P.S. § 780-115(a). Appellant was charged with subsequent offenses; there is no information in the record presently before this Court as to whether appellant was convicted of either offense charged. Such information, however, is not essential to our disposition of the present appeal. We hold that the trial court acted beyond its legal scope of authority granted by 35 P.S. § 780-115(a) by resentencing appellant on her original conviction to five to ten years incarceration as the enhancement provision applies only to subsequent convictions. Thus, even if appellant had been convicted of both of the subsequent offenses, the present sentence would still be illegal. The enhancement provision simply does not apply to an original conviction; rather, it only applies to a subsequent conviction.

The court was without authority to sentence appellant to a period of incarceration of greater than five (5) years. 35 Pa.S.A. § 780-113. The sentence of five (5) to ten (10) years incarceration imposed is, therefore, illegal. Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished.

      . 780-115 Second or Subsequent Offense
      (a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
      (b) For purposes of this section, an offense is considered a second or subsequent offense, if prior to the commission of the second offense, the offender has at any time been convicted under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state relating to controlled substances.

      . We note that the enhancement provision could not be applied as the result of a probation violation, as opposed to a subsequent conviction, as the clear language of the provision applies only to convictions rather than to mere probation violations.