author: HOFFMAN, Judge: CAVANAUGH, Judge,

text:
    630 A.2d 896
    Steven E. FERN, Jr., Appellant, v. William USSLER, Jr. and Josephine G. Ussler, His Wife.
    Superior Court of Pennsylvania.
    Argued April 28, 1993.
    Filed Sept. 2, 1993.

      Charles D. Garner, Jr., Pottstown, for appellant.
    William H. Kinkead, III, Norristown, for appellees.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order granting appellees’, William Ussier, Jr. and Josephine Ussier, motion for summary judgment. Appellant, Steven E. Fern, Jr., presents the following question for our review:

Whether individuals acting in a capacity outside their corporate roles are entitled to the immunities of the Workman’s Compensation Act which would apply to the employer corporation, thus entitling them to the entry of Summary Judgment in their favor?

Appellant’s Brief at 3. For the following reasons, we reverse.

The relevant facts as set forth by the trial court are as follows:

On April 28,1987, [appellant] fell down an exterior staircase of a building located at 82 Main Street, Pennsburg, Montgomery County. [Appellant] injured his back in the fall, which was allegedly caused by a loose step on the staircase. The building is owned by [appellees], husband and wife. Appellees lease the building to McCabe Auto Supply, Inc., and McCabe was in the possession of the building at the time of [appellant’s] accident. William Usslerf, Jr.] is President and Manager of McCabe, and Josephine Ussier is Secretary and Treasurer of McCabe. [Appellant] was an employee of McCabe at the time of his injury and his injury occurred while he was in the course of performing his duties as an employee. [Appellant] has received workmen’s compensation benefits as a result of his injury.
On June 19, 1989, [appellant] filed a complaint alleging that [appellees], as owners of 82 Main Street, were liable to [appellant] for damages as a result of their negligence in maintaining the staircase on which [appellant] was injured. On June 16, 1992, [appellees] filed a motion for summary judgment, contending that [appellant] and [appellees] were co-employees and that exclusivity provisions of the Workman’s Compensation Act bar [appellant’s] suit as a matter of law. Oral argument on [appellees’] motion was heard ... on October 28, 1992. Following argument and after consideration of the briefs of counsel, the court, by Order dated November 5,1992, granted [appellees’] Motion for Summary Judgment.

Trial Court Opinion, January 8, 1993, at 1-2. This timely appeal followed.

A motion for summary judgment is properly granted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). In reviewing a motion for summary judgment, the trial court “must examine the record in the light most favorable to the non-moving party.” Laventhol & Horwath v. Dependable Ins. Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990), appeal denied, 527 Pa. 648, 593 A.2d 420 (1991). This court will not overturn an order granting summary judgment unless “there has been an error of law or a manifest abuse of discretion.” Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 207, 590 A.2d 352, 353 (1991).

In granting appellees’ motion for summary judgment, the trial court relied upon 77 P.S. § 72 of the Pennsylvania Workman’s Compensation Act which provides as follows:

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

Id.

Specifically, the trial court held that as appellant received workman’s compensation benefits, appellant’s complaint did not allege any intentional wrong by appellees and as both appellant and appellees were employees of McCabe Auto Supply at the time of the accident, 77 P.S. § 72 provided appellees immunity from appellant’s action. We disagree. In order to establish section 72 immunity, it must also be demonstrated that the co-employee’s act or omission occurred while he was in the “same employ” as the injured employee. 77 P.S. § 72.

In Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971), an employee was injured as a result of a co-employee’s negligent operation of a motor vehicle. In finding that the co-employee’s operation of the vehicle occurred while she was in the “same employ” as the injured employee, the Supreme Court relied upon the fact that “[b]oth parties were proceeding from one place of employment to another during their work day, acting in furtherance of their duties at the time, and in a manner approved by their employer.” Id. at 293, 278 A.2d at 484. See also Flanders v. Hoy, 230 Pa.Super. 322, 328, 326 A.2d 492, 495 (1974) (as the defendant employee’s negligent operation of the motor occurred while she and the injured co-employee were on a special errand for their employer, co-employee was prohibited from bringing an action against defendant employee in trespass); Piniansky & Piniansky v. Ostrowski, et al., 77 Lack.Jur. 94 (1976) (although plaintiff and defendant were co-employees and on their way to work at the time of the accident, as they had not yet arrived at work and were not under direction of their employer, plaintiff was not prohibited from bringing an action of trespass against defendant). Hence, the mere fact that both individuals held positions of employment with the same employer at the time of the act or omission is not sufficient to show that they were in the “same employ” at the time of the act or omission. Rather, the act or omission must occur while both employees are in the performance of their duties as employees.

In the instant action, it is clear that appellant was working as an employee of McCabe Auto Supply at the time of his injury. Hence, we need only determine whether appellees’ omission occurred while they were in the performance of their duties as employees of McCabe. We first point out that an omission, unlike an act, occurs only when one has a duty to act. See Black’s Law Dictionary at 1086. Accordingly, an omission cannot be found to occur while one is serving as employee unless one had a duty to act by virtue of his employment.

As President, William Ussier, Jr. was the general manager in charge of the individual operations of McCabe. Deposition of William Ussier, Jr., December 6,1991, at 4. There is some evidence that as general manager, he had a duty to inspect and repair unsafe conditions at 82 Main Street. See Deposition of William Ussier, Jr. at 33, 37-38. However, this evidence is by no means incontrovertible. As there is nothing in the record to suggest that appellant has conceded this issue of duty, we find that such a determination is properly left within the province of the finder of fact. Regarding Josephine Ussier, we can find nothing in the record to show that her position as secretary and treasurer was in any way related to the inspection and maintenance of the premises in question.

As there remains a genuine issue of fact as to whether, as employees of McCabe, appellees had a duty to ensure the safety of 82 Main Street, we find that entry of summary judgment was premature in the instant action. See Laventhol, 396 Pa.Super. 553, 579 A.2d 388. Accordingly, we reverse the trial court’s order granting summary judgment.

Order reversed.

WIEAND, J., concurs in the result.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

While I agree with the majority that Steven Fern and the Usslers were co-employees of McCabe Auto Supply, for purposes of application of 77 P.S. § 72 Liability of fellow employe, I find no authority for the proposition in the majority opinion that “the act or omission must occur while both employees are in the performance of their duties as employees”. (Majority opinion at page 899).

I read the language of 77 P.S. § 72 as broadly comprehensive and inclusive of the facts of this case where Fern, when on the staircase, was in the course and scope of his employment. Appellant is nothing more than a fellow employee of the Usslers who were tenants of the structure, including the staircase in question. I, therefore, see no fact issue for jury determination and would affirm the trial court’s entry of summary judgment.

      . See 77 P.S. § 22 (“Every executive officer of a corporation ... shall be an employe of the corporation____”).

      . In his complaint, appellant stated that he was in the course of his employment with McCabe when he was injured.

      . The true focus of co-employee immunity is whether the injury occurred while the employee is actually engaged in the performance of his job. Heath v. Church's Fried Chicken, Inc., 519 Pa. 274, 546 A.2d 1120 (1988); Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988).


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    630 A.2d 900
    Lois LEONE and John Leone, Her Husband, Appellants, v. Victor J. THOMAS, M.D.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed April 16, 1993.
    Rehearing Denied Aug. 23, 1993.

      Wendell G. Freeland, Pittsburgh, for appellants.
    James A. Wood, Pittsburgh, for appellee.
    Before ROWLEY, P.J., and JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge.

Lois and John Leone appeal from the judgment entered in a medical malpractice action finding no negligence on the part of Victor J. Thomas, M.D. The Leones claim that the trial court erred in failing to give a jury instruction on res ipsa loquitur. We reverse.

On September 3, 1985, Thomas performed arthroscopic surgery upon Mrs. Leone for the excision of a popliteal cyst of her left knee. Following the surgery, Mrs. Leone suffered from a loss of sensation and recurrent episodes of pain in her left foot and leg resulting from damage to her peroneal nerve.

The Leones instituted the present action against Thomas on July 2, 1987, claiming that Thomas had been negligent in his treatment of Mrs. Leone. A jury trial was held before the Honorable David S. Cercone on December 4-10, 1991, in which expert testimony was introduced by both parties. At the close of testimony, the Leones requested that the trial court charge the jury on the doctrine of res ipsa loquitur. The trial court denied this request. A verdict was subsequently rendered in Thomas’ favor. Post-trial Motions were denied by the trial court and judgment was entered on the jury’s verdict on April 29,1992. The Leones appeal from this judgment.

When reviewing the trial court’s denial of a motion for a new trial, we are limited to determining whether there was a clear and palpable abuse of discretion or error of law which controlled the outcome of the case. Butler v. Kiwi, 412 Pa.Super. 591, 604 A.2d 270 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992).

The Leones present one issue for our review: whether the trial court erred in failing to instruct the jury in the doctrine of res ipsa loquitur. We conclude that as the doctrine of res ipsa loquitur may be applied to the facts of this case, the trial court erred in refusing to so instruct the jury.

Our supreme court first adopted the doctrine of res ipsa loquitur, as articulated in the Restatement (Second) of Torts § 328 D, in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). That section states:

-§ 328 D. Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

This Court has held that the doctrine of res ipsa loquitur may be applied in medical malpractice cases. Jones v. Harrisburg Polyclinic Hospital, 269 Pa.Super. 373, 410 A.2d 303 (1979). Of course, all three of the elements set out in section 328 D(l) must be satisfied before an inference of negligence can be drawn from an injurious event. Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303 (1986). After all three elements have been established, if reasonable persons may reach different conclusion regarding the negligence of the defendant, then it is for the jury to determine if the inference of negligence should be drawn. Restatement (Second) of Torts § 328 D(3). In the present case, the trial court found that the Leones had failed to establish the first two elements required in section 328 D, and therefore it refused to instruct the jury on res ipsa loquitur. We conclude that this was error.

First, the trial court found that the Leones failed to establish that the injury which Mrs. Leone suffered during the surgery was of a kind which ordinarily does not occur in the absence of negligence. After a review of the record, we conclude that although Dr. Basil A. Marryshow, the expert testifying for the Leones, did not use the precise terminology of Section 328 D, his testimony was clearly sufficient to establish that the injury suffered by Mrs. Leone was not a usual complication from the surgical procedure performed and that the care given by Thomas to his patient fell below the standard expected of a reasonable surgeon in that community. N.T., November 23, 1991 at 56.

To sustain their burden of proof, the Leones were required to produce evidence which would permit the conclusion that it is more likely than not that the injuries were caused by Thomas’ negligence. Sedlitsky v. Pareso, 400 Pa.Super. 1, 5, 582 A.2d 1314, 1316 (1990), appeal denied, 527 Pa. 673, 594 A.2d 659 (1991). Although the expert did not couch his testimony in legal terms, he did clearly state that the surgical performance by Thomas was substandard. This Court has held that when expert testimony indicates that a certain procedure performed by a surgeon is evidence of substandard care, that statement is the equivalent of a statement indicating that an event would not occur in the absence of negligence. Clemons v. Tranovich, 403 Pa.Super. 427, 589 A.2d 260 (1991), appeal denied, 530 Pa. 630, 606 A.2d 900 (1992).

The trial court here, however, placed the extra burden upon the Leones to prove that the injuries sustained could not occur in the absence of negligence. Trial court opinion at 2. This is not required under Section 328 D. Under that section, the Leones need only prove that negligence is more probable than not. Restatement (Second) of Torts § 328 D comment e. The jury is permitted to draw from the occurrence of an unusual event the conclusion that it was the defendant’s fault. Restatement (Second) of Torts § 328 D comment a.

Second, the trial court held that the Leones failed to sustain their burden under the second element of section 328 D because the evidence did not establish that other causes of the injury were impossible. Trial court opinion at 2. This was error.

To sustain their burden under the second element of section 328 D, the Leones were not required to exclude all other possible explanations for the injury. Restatement (Second) of Torts § 328 D comment e; Carney v. Otis Elevator Co., 370 Pa.Super. 394, 399, 536 A.3d 804, 806 (1988). Expert testimony may be sufficient to establish the elements of section 328 D such that a res ipsa loquitur instruction is warranted even when a quantity of contrary evidence has been produced by the defendant. Clemons, 403 Pa.Super. at 434, 589 A.2d at 263; Sedlitsky, 400 Pa.Super. at 5, 582 A.2d at 1316. It is enough that negligence on the part of Thomas is the more probable explanation of the injury suffered. This inference is not for the court to draw, in any case where either the conclusion of negligence or its absence is reasonable; and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable [persons] might do so. Restatement (Second) of Torts § 328 D comment e; Sedlitsky at 5, 582 A.2d at 1316.

Moreover, the only other explanations offered by Thomas for Mrs. Leones’ injuries were events associated with the surgery, all of which were under the guidance and exclusive control of Thomas. See, e.g., N.T., December 9, 1991 at 32-33; N.T., December 6,1991 at 125-129. It is precisely this type of case, one in which an unconscious patient is unable to aver the specific conduct which caused her injury, in which res ipsa loquitur applies. Jones, 269 Pa.Super. at 379, 410 A.2d at 307. In such a ease, the jury is permitted to reasonably infer both negligence and causation from the occurrence of an unusual event and the defendant’s relation to it. Restatement (Second) of Torts § 328 D comments b, g.

The third element under section 328 D, that Thomas owed a duty to protect his patient from damage to the peroneal nerve during surgery, is uncontested between the parties. We conclude that since the Leones had established the three required elements under section 328 D, the question of whether the inference of Thomas’ negligence could be drawn, under res ipsa loquitur; should have been for the jury to resolve. Here, the trial court improperly drew its own conclusions regarding whether the inference of negligence under res ipsa loquitur was present in this case. This impermissible action by the trial court served to prejudice the disposition of the Leones’ case.

We, therefore, conclude that since the Leones presented sufficient evidence to warrant a jury instruction regarding res ipsa loquitur, the judgment must be reversed.

Judgment Reversed and Case Remanded for a new trial.


author: MONTGOMERY, Judge:

text:
    630 A.2d 1219
    Mary Catherine DANKO, Appellant, v. ERIE INSURANCE EXCHANGE, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed July 19, 1993.
    Reargument Denied Oct. 1, 1993.

      William M. Radcliffe, Uniontown, for appellant.
    Stephen P. McCloskey, Washington, for appellee.

      Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal presents an issue of first impression concerning the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). Act of February 12, 1984, P.L. 26, No. 11, § 3, 75 Pa.C.S.A. § 1701, et seq., effective October 1, 1984. This action was instituted by plaintiff Mary Catherine Danko to recover income loss benefits against defendant Erie Insurance Exchange, her motor vehicle insurer. The plaintiffs action was based upon an interpretation of the MVFRL which differed from that relied upon by the insurer. The appeal arises from an order by the Court of Common Pleas of Fayette County which granted summary judgment for the defendant as to one of four counts in the plaintiffs complaint. We conclude that the trial court erred in granting that summary judgment.

It is initially appropriate to discuss the issue of whether this matter is ripe for appellate review. The plaintiff instituted a four count complaint against the defendant, alleging it had improperly failed to pay her income loss benefits. Count I alleged breach of contract; Count II alleged a breach of an implied covenant of good faith and fair dealing; Count III alleged a violation of the Unfair Trade Practices and Consumer Protection Law; and Count IV presented a class action claim for all similarly situated insureds who had been denied benefits sought by the plaintiff in this action. The trial court granted summary judgment in favor of the defendant on the first count, holding that income loss benefits were not due under the terms of the insurance contract. The trial court certified the order for interlocutory appeal by permission, pursuant to Pa.R.App.P. 312, by including language in its order in accordance with 42 Pa.C.S.A. § 702(b). Even in the circumstance of such a certification, Pa.R.App.P. 1311(b) requires that an appellant file a petition for permission to appeal. In the absence of such a petition from the appellant, the appeal would ordinarily be quashed and the case remanded, despite both the trial court’s certification of the issue, and the lack of any objection from the opposing party. Vendale Coal Company, Inc. v. Voto Manufacturing Sales Company, 353 Pa.Super. 635, 510 A.2d 1246 (1986); Gellar v. Chambers, 292 Pa.Super. 324, 437 A.2d 406 (1981). However, a review of the issues presented in this case makes it clear that the order granting summary judgment for the defendant on the first count of the plaintiffs complaint effectively put the plaintiff out of court and ended the litigation. The determination by the trial court that the defendant had not improperly failed to pay the plaintiff the income loss benefits, as claimed in Count I, precluded any further litigation of the plaintiffs breach of covenant of good faith and fair dealing (Count II), Unfair Trade Practices and Consumer Protection Law (Count III), and class action (Count IV) claims. Accordingly, the order of the trial court will be considered as final and immediately appealable. See, Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). We also note that because this action was commenced prior to July 6,1992, the amendment to Pa.R.App.P. 341, regarding final orders, does not apply.

In reviewing the trial court order granting summary judgment, we are mindful that the trial court’s order should not be reversed unless the court has committed an error of law or clearly abused its discretion. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 608 A.2d 1061 (1992). Of course, the instant case presents a question of whether the trial court erred in interpreting a provision of the MVFRL. Thus, a claimed error of law is presented by this appeal.

The facts are not in dispute. The plaintiff was injured in a motor vehicle accident on January 18,1990, while in the course of her employment with Burke Bus Lines. As a result of her injuries, the plaintiff has been disabled and unable to perform her duties as a bus driver. At the time of the accident, the plaintiffs average weekly wage was $152.60. Since the date of the accident, her employer’s workmen’s compensation insurance carrier has been paying the plaintiff workmen’s compensation benefits in the amount of $139.67 per week. The difference between the plaintiffs average pre-injury weekly gross income and the workmen’s compensation benefit she received was $12.93. The MVFRL, in 75 Pa.C.S.A. § 1712(2)(i) provides that the income loss benefit to be provided by an insurer shall be “Eighty percent of actual loss of gross income.” Consistent with that statutory provision, the policy issued to the plaintiff by the defendant indicated that the insurer would pay eighty percent of the gross income “... actually lost by a person we protect.” The policy provided for income loss benefits in máximums of no more than $15,000 per accident, to be paid at a rate not to exceed $1,000 per month.

The plaintiff provided a proof of loss to the defendant, and made a demand for income loss benefits on March 26, 1990. In a response, the defendant denied that any benefits were due. It is the position of the plaintiff that she is entitled to income loss benefits of $10.34 per week, representing eighty percent of the $12.93 difference between her average weekly gross income of $152.60 and the workmen’s compensation benefit which amounts to $139.67 per week. Thus, the plaintiff maintains that “eighty percent of actual loss of gross income” in the applicable policy and the MVFRL means that income loss benefits should be calculated, in this situation, by subtracting the weekly workmen’s compensation benefit from the gross weekly income she enjoyed at the time of the accident, and computing eighty percent of the difference. She argues that the difference represents the “actual loss of gross income”. The defendant, on the other hand, maintains that no income loss benefits are due, because the plaintiff is already receiving workmen’s compensation benefits that are greater than eighty percent of the gross weekly wage she enjoyed immediately prior to her period of disability from the motor vehicle accident. Thus, the insurer contends that it is not required, either under the applicable policy or the MVFRL, to pay the plaintiff any income loss benefits. The defendant argues that the proper way to calculate income loss benefits would be to multiply the plaintiffs pre-injury average weekly gross income by eighty percent, and then subtract from that result any weekly workmen’s compensation benefits which may be paid to the insured. Because the plaintiffs workmen’s compensation benefits exceeded eighty percent of her weekly gross income at the time of the accident, under the defendant’s proposed interpretation no income loss benefits would be due.

We are called upon in this case to interpret a statutory provision which has some ambiguity. In determining the legislative intent with regard to the legislation in issue, we are guided by a number of concepts and rules. The Act of December 6,1972, P.L. 1339, No. 290, § 3,1 Pa.C.S.A. § 1921, provides the following rules of statutory construction:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

In resolving the issue presented in this appeal, we recognize that the MVFRL was enacted as a means of insurance reform to reduce the escalating costs of purchasing motor vehicle insurance in our Commonwealth. Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991); Huber v. Erie Insurance Exchange, 402 Pa.Super. 443, 587 A.2d 333 (1991). However, the underlying objective of the MVFRL is to provide broad coverage to assure the financial integrity of the policyholder. Callahan v. Federal Kemper Insurance Company, 390 Pa.Super. 201, 568 A.2d 264 (1989); Omodio v. Aetna Life and Casualty, 384 Pa.Super. 544, 559 A.2d 570 (1989). The Law is to be construed liberally to afford the greatest possible coverage to injured claimants. Sturkie v. Erie Insurance Group, 407 Pa.Super. 117, 595 A.2d 152 (1991). In close or doubtful insurance cases, it is well-established that a court should resolve the meaning of insurance policy provisions or the legislative intent in favor of coverage for the insured. Motley v. State Farm Mutual Insurance Company, 502 Pa. 335, 466 A.2d 609 (1983); Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 451 A.2d 474 (1982); See also 1 Pa.C.S.A. § 1928(c).

When considering arguably ambiguous statutory provisions, a court may consider prior law, if any, upon the same or similar subjects. 1 Pa.C.S.A. § 1921(c)(5). In that regard, we are assisted in the resolution of this case by our recognition that the MVFRL replaced the Pennsylvania No-fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq. The purpose of the No-fault Act was “... to establish at reasonable cost ... a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims____”. 40 P.S. § 1009.102(b); Cerrato v. Holy Redeemer Hospital, 342 Pa.Super. 551, 554, 493 A.2d 728, 730 (1985). Like the MVFRL, it contained a provision for paying work loss benefits. 40 P.S. § 1009.202(b). Under Section 1009.206(a) of the No-fault Act, it was specifically provided that workmen’s compensation benefits were to be subtracted from gross work loss in calculating the net loss.

In Motley v. State Farm Mutual Insurance Company, supra, our Commonwealth’s Supreme Court was presented with a situation analogous to that before us in the instant appeal. In that case, the injured insured had a combined weekly income of $282.96. Following his injury, he received $163.84 a week in workmen’s compensation benefits from his employer. The No-fault Act did not provide for an eighty percent calculation; it provided for the full payment of lost income, subject to policy limits. In Motley, the Court was presented with the issue of whether in the payment of work loss benefits to the insured, the insurer was liable for: (1) the difference between the workers’ compensation benefits received and the insured’s actual wages; or (2) the difference between the workers’ compensation benefits and the maximum work loss benefits provided by the No-fault Act. In resolving this issue, the court ruled:

“We hold that where an injured claimant is receiving Workmen’s Compensation benefits, excess no-fault work loss benefits are to be computed by deducting the Workmen’s Compensation benefits from the insured’s actual wage, the difference being the benefits to which he is entitled. Section 1009.202(b) of the No-fault Act limits the amount of the work loss benefits which the insurance company will be required to pay. It does not establish a cap on the total sum of lost wage benefits an insured may collect from all sources. 502 Pa. at [340], 466 A.2d at 611.”

It is evident that the Supreme Court’s holding in Motley is supportive of the interpretation advocated by the plaintiff policyholder in the instant appeal.

The Motley decision was filed by the Supreme Court in October 1983. The MVFRL, including the provision in issue here, was enacted in 1984. There is no suggestion within the specific provisions of the MVFRL, or from any other source, that the legislature intended to overrule the reasoning of the Supreme Court in Motley in the implementation of the then-new vehicle insurance statute. There is also no support for the contention that the eighty percent limitation advocated by the defendant insurer, in the instant case, was meant as a cap on the amounts which might be recovered by a claimant, from all sources.

While we would certainly agree with the defense contention that Motley, and other decisions construing the No-fault Act, are not directly applicable to dispose of issues in dispute under the provisions of the MVFRL, the holding in Motley regarding legislation governing similar subject matter, which does not appear to have been intended to be altered by subsequent legislation concerning the same area of concern, cannot be ignored. If the legislature had intended to insert the cap on coverage advocated by the defendant insurer in this case, it certainly could have done so in clear and unmistakable terms. It obviously did not do so.

It is important to recognize that the plaintiff is not seeking benefits in this case that would result in a windfall or a double recovery. She merely claims a percentage of her actual gross income loss which has not been fully covered by workmen’s compensation benefits. Even with the income loss benefits we find she is entitled to receive, under the provisions of both her insurance policy and the MVFRL, she will not reach the level of gross income she enjoyed prior to her injury. In that regard, we note that the MVFRL, in 75 Pa.C.S.A. § 1719, contains a coordination of benefits provision, which makes workmen’s compensation benefits primary for income loss and other benefits which might be due a claimant who suffers disability in a work-related accident involving the use or maintenance of a motor vehicle. The plaintiffs proposed interpretation is entirely consistent with that aspect of the statute. The workmen’s compensation benefits will still be considered primary, in their entirety, in offsetting the plaintiffs lost income. The defendant insurer will not be paying any income loss benefits in duplication of workmen’s compensation proceeds received by the plaintiff. Rather, its payments will be based only upon the Section 1712 “actual loss of gross income” suffered by the plaintiff, comprised of the difference between the weekly workmen’s compensation amount she receives and her gross pre-injury weekly wage.

We conclude that the interpretation advocated by the plaintiff is more reasonable than that submitted by the defendant insurer, and more consistent with the terms of the applicable insurance agreement, the language in the MVFRL, and the apparent legislative intent of that statute. We hold that under the policy language stating that the plaintiff is entitled to “eighty percent of actual loss of gross income” she may recover eighty percent of the difference between the weekly workmen’s compensation benefit she has received, and the gross weekly wage she enjoyed as of the date of her disabling motor vehicle injury.

The order of the trial court is hereby reversed and vacated. This case is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . The plaintiff’s workmen’s compensation benefit rate, which is more than two-thirds of her average weekly wage, was obviously based upon the applicable minimum compensation rate payable under the Pennsylvania Workmen's Compensation Act. See 77 P.S. § 511.

      . In pertinent part, § 1719(a) states:
      General rule. — Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers’ compensation.


author: FORD ELLIOTT, Judge: DEL SOLE, Judge, McEWEN, Judge,

text:
    630 A.2d 1224
    Arlene STERLING and Maxine Abrams and Irving Abrams, Appellants, v. Anne FINEMAN & Henry Fineman and Arlene Sterling, Additional Defendant. Arlene STERLING and Maxine Abrams and Irving Abrams v. Anne FINEMAN & Henry Fineman and Arlene Sterling, Additional Defendant. Appeal of Anne and Henry FINEMAN, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1993.
    Filed July 23, 1993.
    Reargument Denied Oct. 1, 1993.

      Allen L. Feingold, Philadelphia, for Sterling and Abrams.
    Robert B. Goss, Norristown, for Fineman.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

Before us are cross-appeals from the granting of summary judgment below. The appeals arise out of a recently instituted program, implemented for the purpose of reducing the case backlog on the overburdened civil docket of the Philadelphia County Court of Common Pleas. Commonly referred to as the Judge Pro Tem Program, the system has been variously described and reported upon by the Legal Intelligencer, Philadelphia County’s daily legal newspaper. Essentially, the program employs experienced litigators to preside over civil jury cases. Upon disposition, either by jury verdict or otherwise, if either party is dissatisfied they may take exceptions to a supervising judge of the Court of Common Pleas, who, sitting with the judge pro tem, hears the exceptions, reviews the pertinent portions of the record, and resolves the exceptions. Instantly, exceptions in the form of a petition to strike, open, set aside, or reconsider were taken to the granting of summary judgment in defendants’ favor by the judge pro tem. Judge Nelson Diaz of the Court of Common Pleas heard the exceptions and granted summary judgment in defendants’ favor.

This case presents cross-appeals to the resolution below. Plaintiffs challenge the granting of summary judgment by Judge Diaz, who ruled so on a collateral estoppel basis. Defendants, on the other hand, contend that initial summary judgment granted by the judge pro tem was a final and appealable order and that Judge Diaz should not have entertained plaintiffs’ exceptions. Defendants are appealing Judge Diaz’s denial of their Motion to Quash.

The record before us presents a rather uncomplicated factual situation, but a rather more convoluted procedural milieu.

On September 6, 1983, plaintiff Sterling was involved in an automobile collision with defendant Anne Fineman. Plaintiff Abrams was a passenger in the Sterling vehicle. A hit-and-run driver was also involved in the subject accident. The negligence of this “phantom driver” was at least in part responsible for plaintiffs’ injuries.

Pursuant to the terms of plaintiff Sterling’s insurance policy and in accord with the Uninsured Motorist Act, 40 P.S. § 2000, plaintiffs instituted an uninsured motorist action against plaintiff Sterling’s insurance carrier. The instant suit out of which these appeals arise was filed during the pendency of the uninsured motorist suit.

The uninsured motorist action was heard by a panel of arbitrators who found in favor of plaintiffs, awarding plaintiff Sterling $40,000 in damages and plaintiff Abrams $50,000 in damages. Policy limits of the insurance were $100,000 per person and $300,000 per occurrence.

Meanwhile, plaintiffs’ action against defendants, after several procedural turns of no importance here, was eventually assigned to be heard by Judge pro tem Thomas Rutter.

Prior to trial, defendants presented Judge pro tem Rutter with a Motion for Summary Judgment. The basis of defendants’ motion was that plaintiffs were collaterally estopped from raising the issue of damages which they had previously litigated in the uninsured motorist action. Defendants argued that the prior lawsuit had sought recovery for all claims resulting from the accident and that these were fully compensated as evidenced by the fact that the awards were less than the policy limits.

Plaintiffs, on the other hand, maintained that in the uninsured motorist suit they litigated and were awarded damages only for injuries which had been realized from the date of the accident until the date of the arbitration hearing. Plaintiffs argued that the damages sought in the instant suit were for injuries accruing after the uninsured motorist award, maintaining that both plaintiffs had incurred significant additional medical expenses since the date of the arbitration award. The judge pro tem concluded that the damages sought in the instant action were identical to those recovered in the uninsured motorist suit, were barred by collateral estoppel, and granted summary judgment in favor of defendants.

The summary judgment order was entered February 7, 1992. Plaintiffs did not file a Notice of Appeal to the Superior Court, but instead filed a petition to strike, open, set aside, or reconsider summary judgment. Defendants responded with a motion to quash. On May 29, 1992, Judge Nelson Diaz entered an order and opinion granting summary judgment and denying all post-trial motions.

The issues thus presented on these appeals are two-fold. First, plaintiffs argue that Judge pro tem Rutter erred in granting summary judgment. Second, defendants argue that Judge Diaz erred either in confirming that summary judgment, or in granting it anew, and in failing to quash plaintiffs’ petition. Before we may resolve the propriety of the granting of summary judgment by either Judge pro tem Rutter or by Judge Diaz, we must first resolve the procedural issue as to whether Judge Diaz could properly have reviewed the petition to reconsider summary judgment.

Defendants argue that the granting of summary judgment by the judge pro tem represented a final, appealable order and that appeal should have been taken directly from the ruling of the judge pro tem. While we agree with defendants that summary judgment is ordinarily a final and appealable order for which post-trial exceptions are not allowed and which initiates the running of the appeal period, Burkhart v. Brockway Glass Company, 352 Pa.Super. 204, 507 A.2d 844 (1986), allocatur denied, 514 Pa. 615, 521 A.2d 930 (1987), we disagree with defendants’ analysis within the context of the Judge Pro Tem Program. We feel that the Judge Pro Tem Program anticipates that excepted rulings of a judge pro tem will first be reviewed by a judge of the Court of Common Pleas. We note with regret that no written procedural rules exist for the Judge Pro Tem Program. However, the intent of the program’s creators may be gleaned from the pronouncements of the Court of Common Pleas:

These attorneys [selected to sit as judges pro tem] will preside at the jury trials and make all necessary rulings. Should post trial motions follow the conclusion of the trial, they will be argued before the Judge Pro Tem who will be sitting with a Judge of the Court of Common Pleas and a final order will be issued by such Judge preserving all issues for appellate review, if necessary.

Court Notices, The Legal Intelligencer, 6/10/91 at 9 (emphasis added).

We perceive a clear intent on the part of the Court of Common Pleas to create a system whereby any disputed ruling of a judge pro tem would be reviewed first by a judge of the Court of Common Pleas before it would become a final, appealable ruling. Instantly, even Judge pro tem Rutter questioned whether he had the authority to entertain the Motion to Dismiss and grant summary judgment since the case had been assigned to him solely to try the liability claims.

Moreover, there is simply no basis, statutory or otherwise, which would authorize the Superior Court to review any order of a judge pro tem. The judge pro tem is an ad hoc creation of the Philadelphia County Court of Common Pleas without formal recognition before this court. We have no authority to review the rulings of a judge pro tem. The statutory authority for our appellate review is exclusively limited to the final orders of the judges of the courts of common pleas:

§ 742. Appeals from courts of common pleas
The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, ...

42 Pa.C.S.A. § 742. Thus, contrary to defendants’ assertion, plaintiffs could not have appealed Judge pro tem Rutter’s grant of summary judgment to this court. It was not until Judge Diaz reviewed the record and granted summary judgment that a final, appealable ruling existed which was cognizable by this court. At that juncture and only at that juncture could an appeal be taken to this court.

Having decided that plaintiffs’ challenge to the granting of summary judgment by Judge Diaz is properly before us, we turn to that issue. We note first our standard of review in matters of summary judgment:

Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-06, 412 A.2d 466, 468-69 (1979). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297, 467 A.2d 330, 333 (1983). All doubts must be resolved against the movant, as summary judgment is only proper in the clearest case. Thompson Coal, supra, 488 Pa. at 202-06, 412 A.2d at 468-69. Nonetheless, the grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 322, 528 A.2d 177, 179 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988) (citation omitted).

Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991).

We now resolve the issue of whether summary judgment was proper instantly. We believe that the case before us is controlled by direct precedent. Judge pro tem Rutter cited several related cases in the discourse connected to his ruling. Of the cases recited, we find that, Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990), allocatur denied, 526 Pa. 636, 584 A.2d 318 (1990), Phillip v. Clark, 385 Pa.Super. 229, 560 A.2d 777 (1989), allocatur denied, 527 Pa. 649, 593 A.2d 421 (1990), and McNally v. Dagney, 353 Pa.Super. 402, 510 A.2d 722 (1986), are most germane to our inquiry.

In Incollingo v. Maurer, supra, William J. Incollingo was injured when a truck operated by Keith Alan Maurer swerved to avoid another vehicle which had stopped suddenly (the “phantom” vehicle) and instead hit Incollingo’s car. Incollingo brought suit under the uninsured motorist provisions of his own auto policy carrier charging negligence on the part of the phantom driver. The phantom driver was found negligent and Incollingo was awarded $70,000. • The policy limits were $90,-000. Subsequently, Incollingo and his wife brought suit against Maurer. The trial court granted summary judgment on the basis that the Incollingo’s had already been compensated for their full damages.

On appeal to this court, we applied the five requirements of the colláteral estoppel doctrine and concluded that a plaintiff is collaterally estopped from asserting a claim for damages against a tortfeasor where the plaintiff has already pursued the same claim and been awarded full compensation in a prior uninsured motorist action. Full compensation is demonstrated where the amount awarded is less than the coverage of the insurance.

The Incollingo court based its analysis on the fact that a review of the record of the arbitration proceeding left no doubt that the damages sought by the plaintiff in the subsequent civil action were a duplication of the damages sought in the arbitration proceeding. In arriving at its decision, the court referenced a prior decision of the court in Phillip v. Clark, supra. The court found Phillip analogous and quoted from it at length.

Although that case involved recovery from the Pennsylvania Insurance Guaranty Association, the Phillip court did not find this to be a significant distinction. Rather, addressing the collateral estoppel argument, the court therein stated:

In analyzing appellee’s collateral estoppel argument it must be remembered that although appellants had recovered from their own carrier, due to the uninsured motorist context, appellants could be said to have been in a constructive adversarial relationship with that carrier. The essence of uninsured motorist coverage is that the insured’s carrier will provide the liability coverage of the negligent tortfeasor where the tortfeasor does not do so himself. Thus, the insured’s carrier, in a constructive sense, takes the place of the alleged tortfeasor’s carrier and the insured, to recover, must establish the liability of the tortfeasor in the same manner as if proceeding directly against the alleged tortfeasor himself. One would presume, as well, that the interests of the insured and insurer also take on an adversarial relationship as well. The insured would naturally try to recover as much as possible while the insurer, in order to minimize its own liability, would advocate against an excessive assessment of damages. Thus, there is compelling reason to consider the arbitration award a fair and final litigation of appellant’s damages, and the similarity in position of the alleged tortfeasor and the uninsured motorist carrier would seem to also militate toward allowing collateral estoppel effect to the arbitrator’s award. This analysis would pertain to an ordinary uninsured motorist case and seems, at least implicitly, recognized in McNally v. Dagney.

Phillip v. Clark at 232, 560 A.2d at 779.

Incollingo also addressed the applicability of McNally v. Dagney. In McNally, a case premised on substantially the same facts as Incollingo, we determined that, “[The plaintiffs] are not entitled to recover duplicate damages, and thus it was necessary for the lower court to review the record of the arbitration proceeding to determine if such recovery was being sought in the instant case.” 353 Pa.Super. at 405, 510 A.2d at 724. However, the problem for this court in McNally, unlike Incollingo and Phillip, was the sorry state of the record before the court as it pertained to the prior uninsured motorist action. It was simply impossible for the court on appeal to determine from the record whether the same claims had been pursued earlier in the uninsured motorist action. Thus, the McNally court was required to remand for further proceedings in order to augment the record.

Instantly, the judge pro tem, fully cognizant of this procedural problem in McNally, also found himself severely handicapped in that there was no record of the arbitration proceeding which occurred in this case. Further, defendant’s attempt to depose an arbitrator was challenged by Mr. Feingold, counsel for plaintiffs, and quashed. Hence, Judge pro tem Rutter requested both Mr. Feingold, who had represented plaintiffs at the arbitration, and Attorney Pease, who had represented plaintiff Sterling in the uninsured motorist action in her capacity as a defendant, to state on the record to the best of their recollections, the nature of the damage claims before the arbitration panel. Attorney Feingold agreed to this request. Attorney Pease stated that at the arbitration, the witnesses did testify to the need for continuing treatment. Mr. Pease was then unclear as to any testimony which discussed what the continuing treatment would entail. Additionally, Mr. Pease, based on lack of information regarding the injuries and damages involved in the civil suit, was unable to state that the same damages were involved in the arbitration. Thereafter, the following exchange occurred between Judge pro tem Rutter and Mr. Feingold:

THE COURT: I may be able to help us, Mr. Feingold, and you don’t have to answer us if you don’t want to.
The injuries for which your client seeks compensation in this case, are they the same injuries, i.e., back injury or neck injury or whatever the injury was for which compensation was sought in the arbitration proceeding?
MR. FEINGOLD [COUNSEL FOR PLAINTIFF]: I have to answer that two different ways, because there are two different Plaintiffs.
For the Plaintiff Passenger, some of the injuries are the same. Some are totally different and were never testified to or brought up at the time of arbitration.
THE COURT: Did they exist at the time of the arbitration? MR. FEINGOLD: Example being some did not exist even. She was having dizzy spells and problems like that, I believe, or bad headaches.
As a result of one of these spells, and I haven’t read the testimony in a long time, she fell and seriously injured her leg. Years after the arbitration.
So this leg injury is totally separate and totally different but brought on by a continuing problem.
THE COURT: Before you get away from that, but you would nonetheless in the damages hearing in this case have to contend the automobile incident which brings us here was a substantial factor in bringing about the leg injury. Right? MR. FEINGOLD: Yes. Additionally, certain doctors treated the Passenger Plaintiff for, let’s say, a back injury as an orthopedic injury while later it was treated by the other doctors as a different condition or needing different specialists.
The passengers, their treatment, for want of a better word, is substantial after the arbitration.
The driver’s treatment, as far as I know, because she has a husband who is a lawyer and I may not have been privy to all information over the years, I only know of limited treatments since the accident.
THE COURT: And limited treatment of the same injuries or disabilities which were the subject of the arbitration.
MR. FEINGOLD: I believe so. Without having everything in front of me but I believe so.

Notes of testimony, 1/28/92 at 70-72. It was based on this exchange that the judge pro tem determined the damages sought in the instant civil action were damages for injuries plaintiff was compensated for in the arbitration proceeding. Based on the record before this court, we agree.

On remanding for further proceedings in McNally, we stated as follows:

To the extent that appellants are submitting the same claims, appellees may be correct in their assertion that appellants are collaterally estopped from relitigating the amount of damages awarded on those claims.

McNally at 407, 510 A.2d at 725 (emphasis in original).

Instantly, plaintiffs proceeded in arbitration on the theory that the phantom driver caused the accident and the resulting injuries. Plaintiffs are not before us contending that the claims raised in the prior arbitration are different from those raised instantly. Rather, plaintiffs argue that the damages sought previously differ from those demanded instantly in that they have been incurred since the arbitration. However, the injuries (claims) upon which these new and different damages are based remain the same as were heard in the prior arbitration. Indeed, counsel’s own statements reflect that the additional damages sought are those incurred in the continued treatment of the same injuries. We believe that based upon the authority of Incollingo, we must reject plaintiffs’ arguments herein and hold that summary judgment was properly granted. The present state of the law would hold that where a plaintiff has previously litigated a claim under the uninsured motorist provisions of an insurance policy, he is collaterally estopped from pursuing the same claim of injury again against a new defendant even though he may have incurred additional damages.

Accordingly, the summary judgment dated May 29, 1992, is affirmed. Jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

McEWEN, J., files a dissenting statement.

DEL SOLE, Judge,

concurring.

I join the Opinion of my esteemed colleague, Judge Ford Elliott, in her analysis of the procedures to be followed for the Judge Pro Tem Program.

Since we are required to follow Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990), I also reluctantly join her analysis on this issue. However, I believe Incollingo is incorrectly decided since it confused contract recovery with tort recovery and should be revisited.

McEWEN, Judge,

dissenting.

When one differs with the view of two such insightful colleagues, brevity is the far -wiser course. Thus it is that I simply observe that I am of the mind that the doctrine of collateral estoppel should not have been applied and summary judgment granted because the defendants did not establish that the damages sought by plaintiffs in the instant civil action are a duplication of the damages presented in the arbitration proceeding.

      . Because cross-appeals have been filed, we will refer to the parties in the manner they were designated below, as plaintiffs and defendants, in order to avoid confusion.

      . Actually, the motion was styled as a Motion to Dismiss which Judge pro tem Rutter chose to treat as a Motion for Summary Judgment. Notes of testimony, 1/28/92 at 73. The case was originally assigned to the judge pro tem for a trial on liability.

      . Notes of testimony, 1/28/92 at 73. Moreover, when Judge Diaz reaffirmed the grant of summary judgment, his order and opinion specifically referenced this transcript discourse. See Order and Opinion, 5/29/92.

      . The five requirements of the collateral estoppel doctrine are as follows:
      Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.

        Incollingo at 355, 575 A.2d at 940, quoting City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989).

      . We note with interest that Attorney Feingold, plaintiffs’ instant counsel, also represented plaintiffs/appellants in Phillip.

      . We note with continuing interest that Attorney Feingold also represented plaintiffs/appellants in McNally.

      . ' Notes of testimony, 1/28/92 at 67-68.

      . Notes of testimony, 1/28/92 at 69.


author: DEL SOLE, Judge: CERCONE, Judge,

text:
    630 A.2d 1231
    COMMONWEALTH of Pennsylvania v. Robert JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed Aug. 2, 1993.
    Reargument Denied Oct. 5, 1993.

      Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
    Before ROWLEY, Presiding Judge, and DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Robert Jackson appeals from a sentence of four to eight years imprisonment imposed after he was found guilty of possession of a controlled substance, and possession with intent to deliver. He raises one issue for our review, whether the trial court erred in failing to suppress cocaine found in his possession after he was searched by Allegheny County police officers at Greater Pittsburgh International Airport Terminal. He asks us to review on both state and federal constitutional grounds. However, since Appellant failed to raise his state constitutional claims in the trial court, they have been waived. We must therefore analyze Appellant’s claim on federal constitutional grounds and leave the discussion of state constitutional protections for another time. For the reasons set forth below, we vacate the judgment of sentence and remand this case for a new trial.

The evidence established that on November 22, 1989, two plain clothes police officers for the Airport Drug Interdiction team were on duty at Greater Pittsburgh Airport. The officers were stationed there to observe and apprehend potential drug dealers who were either arriving in or departing from the airport, otherwise known as working the “drug courier profile.” One of the officers noticed Appellant, a casually-dressed black male in his early twenties, board an airplane destined for Newark, New Jersey. The officer later testified that they focused on Appellant because Newark is a claimed drug-source city, he was the last to board the plane and had no carry-on luggage.

After Appellant boarded the airplane, the officers received information from an airline employee that Mr. Jackson had purchased his ticket that day, had paid for it in cash, and was scheduled to return to Pittsburgh approximately three hours later . The officers intended to observe Appellant and staked out the return flight but he was not on it.

The next day, three officers including those from the day before, observed Appellant debark from an arriving Newark flight at approximately 3:00 PM with a carry-on bag. Appellant was watched as he entered and exited a men’s room. While in the men’s room, one of the officers observed Appellant’s bag being placed on the ground, he heard the sound of a zipper and a flush of the toilet. The officers noticed that as Appellant left the restroom and headed toward the baggage claim area, he glanced about. This the officers characterized as an effort to determine whether he was being followed. Appellant was then approached by the officers.

They identified themselves while walking along side of Appellant and asked if he would mind speaking with them. Appellant agreed, and when asked, provided the officers with his airplane ticket and a photo ID, both in his name. At the officers’ request, Appellant stepped out of the flow of traffic and into a hallway near an elevator and a set of stairwells.

Appellant placed his bag on the floor and offered to have it searched even though the officers did not possess a search warrant. They informed Appellant that he did not have to permit a search. While one of the officers looked through the bag, the other asked Appellant if he would mind being patted down; Appellant said he did not mind. The officer reiterated that Appellant did not have to agree to the pat down search, but Appellant told the officer to go ahead.

The pat down resulted in a finding of one baggie of cocaine in Appellant’s pocket, and he was then placed under arrest. A further search discovered additional cocaine totalling over 500 grams. Additionally, Appellant was carrying approximately $400.00 in cash.

Although police may have a mere encounter with any individual at any time, when the questioning elevates to the level of an investigatory stop, the inquiring officer must have a reasonable suspicion justifying that stop. Commonwealth v. Stubblefield, 413 Pa.Super. 429, 605 A.2d 799, 802 (1992), citing Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988), allocatur denied 520 Pa. 595, 552 A.2d 250 (1988). In this case, the officers initially engaged in a mere encounter when they approached appellant, identified themselves, asked to see Appellant’s flight information and identification, and advised Appellant that he was not required to comply with their request. However, when the officers maneuvered Appellant out of the line of pedestrian traffic, after determining that his flight information and identification were not in an assumed name, they went beyond the scope of a mere encounter and escalated the confrontation into an investigatory stop. At this point the only articulable suspicion the officers established was that Appellant appeared nervous and his hands were shaking. This is behavior that any reasonable person might exhibit if confronted by three undercover police officers. (Trial Transcript, September 11, 1990, at 50, testimony of Officer Anthony Olearchick). Therefore, no reasonable suspicion existed that would lead one to believe that crime was afoot. Consequently, although appellant offered to have his bag searched and consented to a pat down, that consent was offered at the point when the mere encounter became an investigative stop. Because the officers had no reasonable nor articulable suspicion to conduct an investigative stop, any consent given by Appellant was invalid.

The officers testified at the suppression hearing that when they noticed, approached, and ultimately arrested Appellant, they were working “a DEA developed profile to interdict drug couriers in the Pittsburgh area.” (Trial Transcript, September 11,1990, at 2). This explanation, although given frequently by narcotics officers as justification for approaching a “suspicious” individual, has generated much controversy. This same court in the recent decision of Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1988), criticized the application of the drug courier profile because the profile is not a national profile; it varies depending on the city, airport, or law enforcement agency using it; is subject to racial and gender abuse; envelopes contradictory characteristics; potentially includes an inordinate amount of innocent behavior; and is unclear about the number of characteristics that may warrant an airport stop. Daniels, 599 A.2d at 990, n. 1, citing Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions of Suspicionless Seizures? 12 Nova.L.Rev. 278, 288-296.

When police officers assert, as they do here, that their initial suspicion of a person is based on apparent compliance with certain drug courier profile characteristics, they must introduce the complete and proven profile if they wish to rely on it to justify an investigatory stop. When the conduct described in the profile is innocuous and consistent with noncriminal activity, the officers must establish that the sum total of all of the conduct observed leads, consistently and substantially more often than not, to the apprehension of a drug courier. Unless and until law enforcement officials can prove that there exists a firmly established successful drug courier profile, they simply may not use such alleged “profile characteristics” absent any other objective criteria in order to justify an investigative stop. A mere showing of innocent behavior is insufficient.

The United States Supreme Court case of Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), is consistent with our analysis. In a factually analogous situation, petitioner Reid was approached by a DEA agent who was stationed at the Atlanta Airport in order to uncover “illicit commerce in narcotics.” Id. at 439, 100 S.Ct. at 2753. Reid was observed, while debarking an incoming flight and proceeding through the airport. He occasionally looked back in the direction of a man several persons behind him. When they reached the main lobby of the terminal, the second man caught up with Reid, the two men spoke briefly and then left together. The DEA agent approached the men, identified himself and asked them to present their airline tickets and identification, which they did. The tickets indicated that Reid had paid for both tickets with his credit card and that the trip lasted one day. The agent then asked the men if they would agree to return to the terminal and consent to a search of their persons and their bags. Both agreed. However, when they entered the terminal, Reid began running and eventually dropped his bag, which was found to contain cocaine.

The Superior Court of Fulton County, Georgia, granted Reid’s motion to suppress the cocaine, concluding that the DEA agent possessed no. articulable suspicion that Reid was carrying drugs. The Georgia Court of Appeals reversed, holding that the stop was permissible because Reid fit the profile and furthermore, had consented to the search before attempting to flee. The Supreme Court, however, in a per curiam opinion held that “the agent could not as a matter of law, have reasonably suspected [Reid] of criminal activity on the basis of [the] observed characteristics.” Id. at 441, 100 S.Ct. at 2754. Emphasis added. The Supreme Court found that Reid’s only particularized behavior was that he occasionally turned around and glanced at another person, later determined to be his companion. Such behavior was arguably indicative of innocent behavior which the agent chose to characterize as an attempt at concealment. The Court found that the other mentioned conduct encompassed too large a category of innocent behavior to justify a stop and search. The Georgia Court of Appeals judgment was reversed and the case remanded.

Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992) lends additional support for the result we reach today. There, in an Opinion authored by our esteemed colleague Judge Donald E. Weiend, this court commented that the weakness of certain profile characteristics “in generating a reasonable suspicion of wrongdoing — independent of any force derived from their use in demonstrably helpful law enforcement ‘profiles’ — is obvious----” Id. 604 A.2d at 286, quoting United States v. Gooding, 695 F.2d 78 at 83-84 (4th Cir.1982). The Bennett court concluded that the conduct described by the narcotics detectives as implicating the profile was of such a general nature that it could have been found in a vast number of innocent travelers. Bennett, 412 Pa.Super. at 624 and 604 A.2d at 286. We concluded that the police did not have reasonable suspicion sufficient to detain the defendant for questioning.

We likewise conclude that the officers in this case had no reasonable suspicion which would justify an investigatory stop. Appellant’s consent to the search of his bag and his person which followed the wrongful detention did not cure the illegality.

In Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), petition for allowance of appeal denied 533 Pa. 598, 617 A.2d 1273, the defendant was driving a rental truck towing a Volkswagen. A state police officer noticing that the safety chains between the truck and the Volkswagen were not crossed as required by section 4905(d) of the Pennsylvania Vehicle Code, signaled Lopez to pull over. The officer requested Lopez’ driver’s license, vehicle registration, and rental agreement. After concluding that Lopez’ papers were in order, the officer, rather than release him, continued to question Lopez and eventually requested permission to search the truck and the Volkswagen. Lopez consented to the search of the Volkswagen, which revealed a cache containing approximately seventy-six pounds of marijuana; he was then placed under arrest. His motion to suppress was denied, and, following conviction, he was sentenced to five to ten years imprisonment. This court on appeal held that when Lopez produced a valid driver’s license and registration, he should have been permitted to proceed on his way, “without being subject to further delay by police for additional questioning.” Id., 609 A.2d at 182, citing United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). We held that “no objective circumstances suggested that Lopez ... had committed any crime more serious than the failure to cross the tow chains.” Id. Thus, in order to justify an extended detention, the officer needed reasonable suspicion, which he simply did not have. Id. The court stated: “Because we conclude that the detention of Lopez was illegal, Lopez’s consent to the search of the Volkswagen was tainted by the illegality and was ineffective to justify the search.” Id. citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Commonwealth v. Daniels, supra. Similar reasoning applies to this case with regard to Mr. Jackson’s consent. The officers were not permitted to escalate the encounter to an investigatory stop absent any reasonable suspicion. As such, it was an illegal detention, and any consent given following that detention was invalid.

We conclude, therefore, that the trial court erred in failing to suppress the evidence obtained as a result of the search of Mr. Jackson. The judgment of sentence is vacated and the case is remanded for a new trial. Jurisdiction relinquished.

CERCONE, J., files a dissenting opinion.

CERCONE, Judge,

dissenting.

I respectfully dissent from the opinion expressed by the majority. The majority finds that the police officers’ first contact with appellant was a “mere encounter.” However, majority concludes that when the officers “maneuvered Appellant out of the line of traffic and continued to question him without reason, they went beyond the scope of a mere encounter and escalated the confrontation into an investigatory stop.” Opinion at 1233. I disagree. Based on the evidence presented at the suppression hearing, I cannot find that the mere encounter initiated by the three police officers escalated into an investigatory stop.

When reviewing a ruling of the suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). “Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.” Id.

Not all interactions between the police and citizens involve seizure of persons. Only when the police have restrained the liberty of a person by show of authority or physical force may we conclude that a seizure has occurred. Michigan v. Chestemut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). “An evaluation as to whether a seizure has occurred must be viewed in light of all the circumstances and whether a reasonable person would have believed he or she was free to leave.” Id. at 572, 108 S.Ct. at 1979 (emphasis added). As recognized by this court in In re Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990), allocatur denied, 530 Pa. 643, 607 A.2d 253 (1992), the purpose of the Fourth Amendment to the United States Constitution as well as the purpose of Article 1 Section 8 of the Pennsylvania Constitution, is:

“to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.... “But if the person refuses to answer and the police take additional steps ... to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure.”

In re Jermaine, supra, 399 Pa.Super. at 509-11, 582 A.2d at 1061.

This court has defined the various types of encounters involving police officers and suspects:

A police encounter with a suspect may properly be characterized as a mere encounter, an investigative detention, a custodial detention, or a formal arrest.... A ‘mere encounter’ (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or to respond____ An ‘investigative detention’ must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest____ A ‘custodial detention’ must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest.... Formal arrest requires probable cause, and needs no further definition.

Commonwealth v. Lidge, 399 Pa.Super. 360, 367, 582 A.2d 383, 386 (1990), allocatur denied, 527 Pa. 598, 589 A.2d 689 (1991) (emphasis added) (quoting Commonwealth v. Douglass, 372 Pa.Super. 227, 238-39, 539 A.2d 412, 417-18 (1988) (citations omitted)). If a person is involved in a permissible police encounter, his consent, if voluntary, to search his or her luggage would allow the products of the search to be admissible against that person. Commonwealth v. Lidge, 399 Pa.Super. at 368-69, 582 A.2d at 387.

A close reading of the transcript of the suppression hearing establishes that appellant was not illegally detained and, as such, there was no seizure of his person in the present case. Keeping in mind our standard of review, the evidence establishes that the three officers approached appellant and identifled themselves by name, asking appellant if he would mind speaking with them. N.T. 9/11/90 at 9. The officers informed appellant that he did not have to consent, but appellant responded that he wouldn’t mind speaking with them at all. Id. at 9, 68. The officers were not wearing uniforms, and no weapons were visible on their persons. Id. at 29, 30, 49, 63-64.

When asked, appellant indicated that he would not mind stepping out of the way of airport pedestrian traffic. Id. at 57. The three officers, followed by appellant, walked about ten to fifteen feet to a recessed area. Id. at 57, 67. Officer Korczyk described the area as follows:

Well, if you were walking down this hallway there would be a cut out section where — it would be 10 foot [sic] or so wide and 5 or 6 feet deep. It’s actually for the people that would be waiting for the elevator to stand so they wouldn’t be interfering with the normal flow of traffic in the airport.
[T]here are three walls, and it’s open on the one side. There’s a stairwell and an elevator in that indentation, all of which are exits.

Id. at 73-74. Appellant was not blocked into the area and was in full view of the public. Id. at 74. No officer touched or grabbed appellant. Id. at 29.

Appellant showed his ticket to the officers, who read and returned it. Id. at 39. When appellant offered to allow the officers to search his bag, the officers responded “You don’t have to let us look into the bag,” to which appellant stated “No, it’s okay, go ahead.” Id. at 10-11, 31. At that point, one of the officers asked if appellant would consent to a pat down search to which appellant stated “Sure, go ahead.” Id. at 52. The officers advised appellant that he had a right not to consent to the pat down search. Id. at 53. Beyond looking at the identification and ticket presented by appellant, the officers did not retain any of appellant’s belongings. Id. at 59.

I cannot agree with the majority’s conclusion that the evidence established that the mere encounter with appellant escalated into an investigative stop. The majority makes much of the fact that the officers “maneuvered” appellant out of the line of traffic and continued questioning him without reason. However, the majority overlooks the fact that the encounter had not yet begun when the officers and appellant stepped to the side of the corridor. The only question asked of appellant at that point in time was whether he would mind answering the officers’ questions. Appellant was fully informed that he did not have to give his consent.

Moreover, in reviewing cases involving drug interdiction at airports, we cannot disregard the realities of the airport environment or common sense. Common sense would dictate that during the Thanksgiving holiday season, standing in the middle of an airport corridor would create a hazard not only for appellant, but for other travelers as well. Stepping to the side to avoid being “trampled” does not, in itself, create a coercive condition thereby turning the encounter into an investigative stop. Especially where, as here, no questions had yet been posed to appellant.

The record clearly reveals that the three officers never indicated, in any manner, that appellant was not free to terminate the questioning and vacate the area. It is also clear from the testimony that it was appellant, not the police officers, who initiated the search of his bag. When an officer asked if appellant would consent to a pat-down search, the officer again informed appellant that he did not have to consent to the search. A review of the record discloses that the officers never acted in a threatening manner and in fact, told appellant at every stage of the encounter that he had the right to-withhold his consent. Based on this evidence, I must conclude that a reasonable person would have believed he was free to leave at any point during the encounter. The evidence does not establish that the encounter escalated into an investigatory stop.

Accordingly, I would affirm the judgment of sentence imposed by the trial court.

      . A supposed drag courier characteristic is traveling without either carry-on or checked luggage. The officers attempted to determine if Appellant had checked any luggage. They were unable to do so. However, appellant had in fact checked luggage, even though this fact was not evident from the officers’ inquiry with the airline employee. The officers assumed that appellant had checked no luggage, and considered this as also indicative of the suspected behavior of being a drug courier.

      . Use of drug courier profiles has also been questioned since its ability to accurately predict criminal activity and not intrude on citizens who are not engaging in unlawful behavior has not been conclusively established. The sparse statistical data that has been reported hardly champions the continued application of profiles. For instance, the Pittsburgh Press reported the results of Common Pleas Judge Walter R. Little’s order for an Allegheny County narcotics detective to set forth statistics regarding the race of passengers he has investigated in his 2 and 55 years on the interdiction team. He reported that about fifty per cent of the 96 travelers he has questioned or arrested have been black, six per cent were Hispanic, and forty-four per cent were white. "Courts eye rights violations by drug-busters at airport.” The Pittsburgh Press, March 22, 1992, at_, col.__Even more startling, however, is the pathetic lack of success the profile reportedly had notwithstanding its repeated use. The same article revealed that since July of 1988, police working the airport drug interdiction unit interdicted 1,542 travelers and arrested 131 suspected drug couriers — a mere eight per cent. Id. Clearly, if these statistics are correct, the drug courier profile has not resulted in an overwhelming increase of successful investigatory stops and arrests.

      . If the police are using a newly created profile, they must establish the basis for each characteristic being included in the profile and how the sum total of those characteristics observed and relied upon lead substantially more often than not to a drug carrier.
      If they are using an established profile, they must be able to demonstrate its success rate. Clearly, if the rate of success is as dismissal as has been reported, the profile cannot be used.
      In either event, the profile must be clearly defined and be able to identify accurately and substantially more often than not those engaging in prohibited behavior to be permitted.

      . The DEA agent claimed that Reid fit the drug courier profile based on the following factors: (1) Reid had arrived from Fort Lauderdale, a supposed source city for drug traffic; (2) Reid arrived early in the morning when law enforcement activity is relatively slow; (3) Reid and his companion appeared to be trying to conceal the fact that they were traveling together; and (4) they had no luggage other than their shoulder bags.

      . The officers stated that the factors that caused them to focus on Bennett were "(1) his arrival from a source city; (2) his casual manner of dress; (3) his making of brief, animated telephone calls; (4) his not having any checked baggage; and (5) his carrying of only a single item of carry on luggage” id. 412 Pa.Super. at 619, 604 A.2d at 284.