author: Head, J.,

text:
    Grafius’ Run.

      Road law — Land damages — Abutting property — Act of April 28, 1899, P. L. 74 — Waters.
    The Act of April 28,' 1899, P. L. 74, entitled “An Act authorising any borough or city within this Commonwealth to vacate, change, alter, or relocate the course or channel of any creek, run, or natural waterway, other than navigable streams, and for this purpose to enter upon, condemn, and take property and materials to such vacation, change, alteration, or relocation, and providing for the ascertainment and assessment of costs, damages, and expenses, as well as the levy and collection of benefits arising therefrom, and constituting such benefits a lien upon the properties upon which they are respectively assessed,” does not confer on a city power to levy any special taxes against or assess with benefits any property not abutting on the line of the public improvement.
    Argued March 8, 1906.
    Appeal, No. 9, March T., 1906, by the heirs of the Estate of Sarah T. Smith, deceased, from order of C. P. Lycoming Co., March T., 1901, No. 332, assessing damages from appeal of award of jury of view in the Matter of Grafius’ Run.
    Before Rice, P. J., Porter, Henderson, Morrtson,' Orladv, Head and Beaver, JJ.
    Reversed,

      Appeal from award of jury of view. Before Hart, P. J.
    From the record it appeared that in 1901 the city of Williamsport by ordinance changed the location of Grafius’ Run. Viewers were appointed to assess benefits and damages’ under the act of April 28, 1899. The jury assessed benefits against a large number of property owners.
    Exceptions to the report of the jury of view were overruled by the court.

      Errors assigned were in overruling exceptions to report of jury of view.

      H. W. Pyles and II. T. Ames, of Ames cf Hammond, for appellant.
    — The power of assessing costs of local improvements upon the property benefited is a species of taxation: Hammett v. Philadelphia, 65 Pa. 146; Pittsburg v. Sterrett Sub-District School, 204 Pa. 635; Philadelphia v. Pemberton, 208 Pa. 214.
    Local assessments for local improvements can be imposed only to the extent of benefits: Philadelphia v. Pemberton, 208 Pa. 214; Hammett v. Philadelphia, 65 Pa. 146; Washington Avenue, 69 Pa. 352.
    The authority to impose a special assessment for benefits resulting from local improvements, which is an exercise of the taxing power, is conferred by statute and the provisions of the statute must be strictly complied with: Harriott Avenue, 24 Pa. Superior Ct. 597; Franklin v. Hancock, 18 Pa. Superior Ct. 398; Scranton v. Koehler, 200 Pa. 126.
    The authorities establish the general rule, based upon the consideration of the nature of local assessments for public improvement, that the legislature has not power to authorize a municipal assessment therefor upon non-abutting property for paving, sewering or other improvements of the same kind: Morewood Avenue, 159 Pa. 20; Orkney Street, 9 Pa. Superior Ct. 604; Witman v. Reading, 169 Pa. 375; Park Avenue Sewers, 169 Pa. 433; Fifty-fourth Street, 165 Pa. 8; Beechwood Avenue Sewer, 179 Pa. 490 ; Colwyn Borough v. Tarbottom, 9 Pa. Superior Ct. 414; Thirteenth Street, 16 Pa. Superior Ct. 127; Grant Street, 17 Pa. Superior Ct. 459; Washington Avenue, 68 Pa. 352; Saw-Mill Run Bridge, 85 Pa. 163; Orphan Asylum’s App., 111 Pa. 135; Alcorn v. Philadelphia, 112 Pa. 494; City of Williamsport v. Beck, 128 Pa. 147; Allegheny City v. Railroad Co., 138 Pa. 375; Pittsburg’s Petition, 138 Pa. 401.
    The Act of April 28, 1899, P. L. 74, does not authorize a municipality to assess non-abutting property owners for the construction of a storm water sewer or for the vacation of a water course.

      Frank P. Cummings, city solicitor, for appellee,
    cited: McMasters v. Commonwealth, 3 Watts, 292; Fenelon’s Petition, 7 Pa. 173; Extension of Hancock Street, 18 Pa. 26; Pennock v. Hoover, 5 Rawle, 291; The Northern Liberties v. St. John’s Church, 13 Pa. 104; Phila. v. Wistar, 35 Pa. 427; Commonwealth v. Woods, 44 Pa. 113; Magee v. Commonwealth, 46 Pa. 358; Wray v. The Mayor, etc., of Pittsburg, 46 Pa. 365; Washington Avenue, 69 Pa. 352; Orphan Asylum’s Appeal, 111 Pa. 135; In Re Vacation of Center Street, 115 Pa. 247.
    October 5, 1906:
   Opinion by

Head, J.,

To view, in the light most favorable to the appellee, the Act of April 28, 1899, P. L. 74, under which the present proceeding was instituted, we would classify it with a long series of acts, passed since the adoption of the new constitution, in" which the legislature has authorized the construction, b3^ municipalities, of vai’ious local improvements such as streets and sewers, and the collection of the whole or part of the cost thereof from certain properties found to have been peculiarly and specially benefited thereby. So much litigation has arisen under these various acts resulting in the judicial construction of almost every one of them, that we must now regard as firmly imbedded in the bod3 of our law those principles stated and reiterated in this long line of decisions. It is settled that the imposition on certain properties in a town or city, of the burden of paying all or part of the costs and expenses of an improvement, when other properties in the vicinity or in the municipality generally are not called upon to share in such burden, is an exercise of the taxing power. At the outstart all acts of this class were strongly attacked on the ground that they were in violation of that provision of the constitution which requires that all taxation must “ be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” But the courts steadily held to the propositions that' such taxation, within the limits hereinafter stated, was not violative of the fundamental law and could be sustained, but on the basis only “ that the benefits are local and essentially peculiar to the very property assessed; ” and “ the limit of the benefit is the limit of the taxing power: ” Park Avenue Sewers, 169 Pa. 433; Morewood Avenue, 159 Pa. 20.

Had the courts, however, in the construction of these legislative acts, gone no farther than to announce the two principles already referred to, but little would have been accomplished of practical importance to protect the property of the citizen from unjust and unconstitutional taxation. The municipality, a city engineer, a board of viewers or other body provided by the legislature would still be at liberty to range at will over sections of the community more or less remote from the location of the improvement, and, on the theory that they lay in the same watershed, or within the lines to which the swollen waters of some stream in times of great floods had risen, or for other like reason, determine that they were specially benefited by the construction of the improvement and should be saddled with the cost of it. Thus could the citizen be so loaded with benefits that his property would be taken from him in discharge of burdens which should be borne by all, and the provisions of the constitution directing uniformity of taxation and forbidding the taking of private property for public use without making just compensation therefor, be rendered wholly ineffectual.

When a street is opened or paved or a sewer constructed in a city or borough, the improvement comes into actual contact with the properties that abut on the line of it. By its construction these properties are physicalty and palpably changed and affected. This physical, tangible change in their condition may result in making them worse or better, may damage or benefit them. But such damages are actual and real, such benefits are special and peculiar. . And surely, in sustaining what is admittedly a species of special taxation and therefore an apparent exception to the broad constitutional provision on the subject, the courts must have intended that the properties subject to such taxation could be segregated, from the others in the same community by some plain and well-defined line. It is doubtless true that other properties beyond this line of physical contact may receive some benefit from the construction of an improvement; otherwise it would be difficult to justify the making of any such improvement at the expense of all the people of a community. The line by which properties, subject to assessment for such benefits as those last referred to, would be separated from their adjoiners not called upon to bear any burden, would be wholly arbitrary, depending on nothing more fixed and certain than the guess or notion of the officer or board making the assessment. In the improvement of one street or section of a city the line of demarcation might be fixed by one board of viewers on one plan or theory, in the next street or section another board might adopt a totally different plan, and thus, by reason of this uncertainty, property values would be greatly disturbed and the condition of the citizen rendered intolerable.

Our courts, however, in upholding legislation authorizing the levying of special taxes, under the guise of assessments for benefits, to pay the cost of improvements, have repeatedly declared that such assessments must be confined to properties abutting on the line'of the improvement. Many ably contested and well-considered cases have held that this line could neither be overstepped nor departed from. In Morewood Avenue, 159 Pa. 20, where Mr. Justice Gbeen fully reviews the entire line of cases on the subject, it is said : “ As we have repeatedly decided, the doctrine of assessment for benefits, to pay for public improvements, can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, and then it can only be done once. This can only be the case when the property assessed abuts directly upon the line of the improvement. Having their own burthens to bear in this respect, the owners cannot be subjected to the discharge of similar burthens upon other properties, whether situate on the same street or in the same neighborhood.” In Park Avenue Sewers, 169 Pa. 433, Mr. Justice Mitchell, speaking for the court, says: “ But viewing the subject on the broader ground of the nature of local assessments, it is settled beyond all question by a line of cases of which it is only necessary to mention Hammett v. Philadelphia, 65 Pa. 146, and Washington Avenue, 69 Pa. 352, that they are special and individual taxation, sustainable only on the basis of special and individual benefit, and the limit of the benefit is the limit of the taxing power. It was accordingly held in Morewood Avenue, 159 Pa. 20, and repeated in Fifty-fourth Street, 165 Pa. 8, that assessments for local improvement by paving must be confined to property abutting on the street so improved. It is not easy to see any valid distinction in this respect between improvement by a pavement and improvement by a sewer, and there are very strong reasons why no such distinction should be recognized.” In Harriott Avenue, 24 Pa. Superior Ct. 597, this court, W. D. Porter, J., defining the limits of such assessments under the act of May 16, 1891, said : “ This broad interpretation of the term ‘ properties peculiarly benefited by the improvement,’ as embracing all property without regard to its nature and location, cannot be sustained. The property liable to assessment under the provisions of this statute is such only as abuts directly upon the line of the improvement.” In Orkney Street, 9 Pa. Superior Ct. 604, this court was called upon to construe the act of April 1,1864, which enacted that when a street was opened in the city of Philadelphia the “ jury appointed to ass.ess the damages .... shall also make inquiry as to the advantages of opening said street to property in the immediate vicinity o'f the same.” This is certainly broader language than can be found in either the acts of 1891 or 1899. In holding that even under this act there could be no assessment of non-abutting property, this court, Rice, P. J., declared : “ It is vain to argue that Morewood avenue can only be regarded as a binding authority where the proceedings are under the act of 1891. It not only construes that act, but it also lays down a general rule, based upon a consideration of the nature of local assessments for public improvements and of the limitations of the power of the legislature in that regard, which, although the act were as broad in terms as the Act of April 1,1864, P. L. 206, would defeat any assessment of non-abutting property for paving or sewering, or other improvement of the same kind.” These cases, and many more that could be cited, seem to me to oblige us to hold that the legislature could not, acting within its constitutional powers, authorize the appellee to assess benefits against, or in other words, levy special taxes on, any prop-: erties, to pay the cost of a local improvement, except those abutting directly on the line of such improvement. And. why should it be assumed that the legislature intended, by the act of 1899, to pass the line previously marked by the courts ? The language of the act, conferring on the appellee the power to levy special taxes and describing the properties on which they might be levied, is not substantially different from, indeed is almost identical with, that used in the act of 1891, construed in several of the cases cited. The language of the latter act having been interpreted by the court to authorize no assessments except against abutting properties, it must be assumed that when the legislature again used substantially the same form of expression in the act of 1899, it intended to confer but the same power and no greater than was held to have been conferred by the earlier act: Endlich on Int. Stat., secs. 367-869. Waiving, then, any question of the constitutional power of the legislature to authorize the levy of a special tax on property not abutting on the line of the improvement, and looking at the act of 1899 to see what power was actually granted, keeping in mind the well-established rule of interpretation just referred to, we can find no intrinsic evidence that any other or larger powers were intended to be conferred than were given in substantially the same language by the earlier act. The authoritative construction of that language in the act of 1891 must control its interpretation in the act of 1899.

But it is ingeniously argued by the .learned counsel for the appellee that the “ improvement ” in the present case is “ the removal of the floods and waters from the properties within the affected area,” and as a consequence that every property in that section may be said to abut on the line of the improvement within the reason and meaning of the decisions cited. This seems to be a substitution of the effect for the cause, of the results following or expected to follow the completion of the improvement for the improvement itself. The word “ improvement,” as used in the act of 1899 and the earlier acts with which it may be properly classed, we understand to mean the work done on the ground which involved the expenditure of monejr, to recoup which, in whole or in part, the authority to levy special taxes on properties specially benefited is conferred on the municipality. The improvement in the present case is clearly and conclusively defined in the following paragraph taken from the report of the viewers:

“That the estimated cost of construction of the main sewer down Locust street, from High street to the river, is about 195,000, of which sum the undersigned viewers have assessed against the properties which, in their judgment, are or will be affected by the proposed improvement, the sum of $25,398.” Strong reasons, indeed, might be urged for holding that, in a proceeding like the present, under the act of 1899, the line of improvement would embrace not only the line of the newly constructed channel of the stream, whether on or beneath the surface, but also the line of the old and vacated.channel, because the properties abutting on the latter would be physically changed and affected by the accretion to each of its proportionate share of the abandoned water way. But as the properties of the appellants here are remote from both the old and new channels, we are not required to consider that question.

The special benefits which it is alleged have accrued to the properties of the appellants, remote from the line of the improvement, are thus described in the report: “ That the waters of Grafius’s Run have within two years past overflowed its banks and flooded the following described territory: ” (Here follows a description of a large section of the city, including the properties of appellants) “. . . . that if the plan of sewerage or drainage' adopted by said ordinance No. 753 (an ordinance earlier in date than the one under which the present improvement was begun and which provided apparently a comprehensive plan for the sewerage of the city) is fully carried out, the waters of Grafius’s Run will be effectually disposed of and removed from the territory first described,” etc. How frequently and upon what kind of occasions the waters of the Run reached the properties of the appellants, Avhether on every ordinary rise and freshet in the stream, whether on the occasions of extraordinary floods only, or whether indeed the visitations were confined to those rare but awful elemental disturbances we call acts of God, the report does not inform us. Thus the supposed benefits, which consisted in the probable removal of danger from such floods, would become more and more remote, speculative and uncertain as the danger of the recurrence of the floods, according as they may have belonged to the one class or the other, would diminish.

Looking at the case in every aspect, at the character of the improvement, the area supposed to be affected and benefited thereby and at the nature of the benefits claimed to have accrued to non-abutting properties, we are unable to discover any difference in principle between it and Beechwood Avenue Sewer Cases, 179 Pa. 490. In that case the Supreme Court reaffirmed the doctrine of the entire line of cases herein so often referred to. The same reasoning that led the court in that case to confine assessments for benefits to abutting properties, must logically lead us to the same conclusion here. As the properties of the appellants did not abut on the line of the improvement, their assessment cannot be sustained.

We hold, therefore, that the act of April 28, 1899, under which this proceeding was begun, did not confer on the city of Williamsport the power or authority to levy any special taxes against or assess with benefits any property not abutting on the line of the improvement which was constructed. Even if the intention to confer such power could be found in the act when construed in the light of the decisions of the Supreme Court and this court, I would hold that the legislature had exceeded its constitutional powers, because such legislation would result in the practical nullification of the provisions of the constitution hereinbefore referred to.- But as my brethren are not all of one mind on this question and do not regard its determination as necessary in disposing of the case before us, we rest our judgment on the other ground. The second and third assignments of error are sustained.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Howard H. Clark & Company, Limited, v. Warren Savings Bank, Appellant.

      Banks and banking — Checks—Acceptance—Payment—Actions—Act of May 10, 1881, P. L. 17.
    In Pennsylvania the holder of a check cannot maintain an action in his own name against the bank on which the check is drawn, unless the bank has accepted it.
    The act of a bank in paying a check on a forged indorsement and its subsequent act of charging the check against the account of the drawer, is not an acceptance in writing signed by the acceptor within the meaning of the Act of May 10, 1881, P. L. 17, which declares “ that no person within this state shall be charged as an acceptor on a bill of exchange, draft, or order drawn for the payment of money, exceeding twenty dollars, unless his acceptance shall be in writing, signed by himself or his lawful agent.”
    First National Bank v. Whitman, 94 U. S. 343, considered and followed; Seventh National Bank v. Cook, 73 Pa. 483, considered and distinguished.
    Argued May 22, 1906.
    Appeal, No. 50, April T., 1906, by defendant, from judgment of O. P. Warren Co., June T., 1901, No. 36, on verdict for plaintiff in case of Howard H. Clark
    & Company, Limited, v. Warren Savings Bank.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a check. Before Wilson, P. J.
    At the trial the following offer was made:
    ■Mr. Patterson: Our case is founded on the check with the indorsement as proved, and the fact that this check has been paid to some one and it has been charged to Powers’ account, and the check is offered in connection with the entire testimony that has been offered.
    Objected to, for the reason that the indorsement has not been proved, and without it no right to recover on the check by anyone would appear. And object to it further as entirely immaterial and incompetent as tending in any way to establish any indebtedness of the bank to the plaintiff in this case.
    Objection overruled and exception sealed for defendant. [1]
    Plaintiff presented the following points:
    1. If the jury believe that the defendant charged the check in suit to the account of J. H. Powers, the drawer, and in its settlement of accounts with him obtained a credit of the amount thereof, and that John Barclay was without authority to indorse the check on the plaintiff’s behalf, under all the evidence the verdict should be for the plaintiff. Answer: Affirmed. [9]
    2. If Barclay was without authority to indorse the check, there has been no legal payment thereof, and if the jury believe the bank has charged the check to Powers’ account, the verdict should be for the plaintiff. Answer: Affirmed. [10]
    3. The receipt of the check exhausted Barclay’s authority to collect, and he had no authority to indorse the check as an incident of his authority to receive the same. Answer: Affirmed. [11]
    Defendant presented these points :
    1. There is no privity of contract between the bank and the payee of an unaccepted check on such bank, and the payee of the check has no cause of action against the bank on which it is drawn until said check is accepted. Answer: Affirmed. [12]
    2. Since the act of May 10, 1881, the acceptance of a check for more than $20.00 must be in writing, signed by party on which it is drawn or its proper officer or agent. Answer : The second point as applied to the evidence in this case is refused.
    3. No legal or valid acceptance of the check sued on has been shown, and the verdict must be for the defendant. Answer : The third point is refused. [13]
    Verdict and judgment for plaintiff for $98.15. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (9-13) above instructions, quoting them.

      C. W. Stone, with him It. W. Stone, for appellant,
    cited: First Nat. Bank v. Whitman, 94 U. S. 343.

      Charles E. Patterson, with him Joseph A. Schofield, for appellee,
    cited: Seventh Nat. Bank v. Cook, 73 Pa. 483.
    October 5, 1906:
   Opinion by

Head, J.,

The courts of last resort in many states of the Union have clearly held that the payee or other lawful holder of a check, after it has been presented at the bank on which it is drawn and payment has been refused, may maintain an action directly against the bank to recover the amount thereof. In other states, our own among them, it has been just as distinctly decided that no privity of contract exists between the payee and the bank and consequently that there is no foundation to support such an action. “ It may be regarded as settled that the holder of a check cannot maintain an action in his own name against the drawees, though they may have sufficient funds of the drawer, if they refuse to accept it Saylor v. Bushong, 100 Pa. 23. Before the plaintiffs in this action could recover, therefore, they must have shown that the bank had voluntarily departed from the position which, under the law, it occupied as a drawee merely, and had assumed towards them the attitude of an “ acceptor” of a bill of exchange of which they were the payees or lawful holders. In discharge of this burden evidence was offered to prove and the verdict establishes the following facts. One Powers, being indebted to the plaintiffs, drew his check on the defendant bank for the amount of his debt and delivered it to Barclay, the collecting agent of the plaintiffs. Barclay, without the knowledge or authority of the plaintiffs, indorsed the check, presented it at the bank and secured the money it called for, which he appropriated to his own use and then absconded. At the close of the day’s business the bank, assuming it had properly paid the check, stamped it with the usual pay stamp, charged it to the account of its depositor, and, in due course, when bis bank book was “ written up” or balanced, returned it to him with his other canceled checks. Some months later the transaction came to the knowledge of the plaintiffs, who then obtained the check from Powers, presented it at the bank and demanded payment. Upon the refusal of the bank to pay this action was begun. These facts being established, would the law of Pennsylvania — prior to the Act of May 10,1881, P. L. 17, the effect of which we shall presently consider — conclusively presume therefrom that the bank had “accepted” the check and thus furnish the all-important foundation upon which alone the. plaintiffs’ action could rest?

Were we at liberty to regard this as an open question, we would find great difficulty in rejecting the force of the reasoning that would answer it in the negative. Payment and acceptance, in the commercial world, are essentially different things. The former is the natural, legitimate end; the latter is often but the beginning of the active career of a negotiable instrument. When a bill has been paid its mission has been fully accomplished, it is dead and useless; and this is not only the result, but the object of payment. But by acceptance there is added to its original vitality a new element of force and strength calculated to prolong its existence and widen its sphere of usefulness ; and, as before, this is not a merely casual incident, but the very purpose of the act of acceptance. The two things being thus radically different it is hard to see how an attempt to pay can be construed as an intent to accept.

Moreover, the contract of a banlc with its depositor is a simple one. It undertakes to safely keep his money and pay it out only upon his demand made in the manner and form sanctioned by the long-established .usage of the commercial world. And the payment must be, at the peril of the bank, in exact accord with the tenor of the demand. When, therefore, a bank hands over its counters the money called for by a check to which the name of the drawer or payee has been forged, it pays out its own money and not its depositor’s, because the sole condition upon which it could disburse the latter does not exist. It has attempted to pay its debt to its depositor, but the attempt has been rendered ineffectual by its own negligence or mistake, and the consequences of such error must be borne by itself; they cannot be visited upon either the depositor or payee who were in no wise responsible for it.

Convincing as this line of reasoning would seem to be when fully developed and strongly stated, as it has been by the Supreme Court of the United States in First National Bank v. Whitman, 94 U. S. 348, yet, for the purpose of determining whether or not the acts of the appellant bank amounted to an acceptance of the check, we must regard it as conclusively answered by the case of Seventh National Bank v. Cook, 73 Pa. 483. In that case, upon a state of facts precisely similar to the one now before us, our Supreme Court has declared the act of a bank, dn mistakenly paying out money on a check on which the name of the payee was indorsed, by another without authority, amounted to an acceptance of the check. “ It is, in fact, an acceptance, and binds the bank as a certified check does. ‘ It is tantamount to an acceptance of the draft.’ ”

We think we may properly say, without being accused of any want of respect for the authority of the high tribunal uttering that judgment, that the opinion delivered does not disclose any satisfactory reason for the conclusion reached. The judgment seems to be rested on a single sentence taken from the opinion of Mr. Justice Davis in Bank of the Republic v. Millard, 77 U. S. 152. In that case it was distinctly held that the payee in a check, which the bank had mistakenly undertaken to pay on an unauthorized indorsement, could not maintain an action against the bank, and the judgment he had recovered in the court below was reversed. This was the only point decided. No question arose as to the result that would follow had the bank, later on, balanced the book of its depositor, taken credit therein for the money so paid out, and returned the check as paid and canceled to the drawer. No such facts were presented by that record. It is true the eminent jurist who delivered the opinion in that case uttered a carefully guarded suggestion as to the result that might flow from such facts, had they been established. This, we think, cannot be regarded as more than dictum merely, especially in the light of the later case of First National Bank v. Whitman, supra. In that case the exact point was raised and decided and it was again held, following Bank v. Millard to that extent, that a payee in a check could not maintain an action against the bank because the latter had paid out the money called for by the check on an unauthorized indorsement of the name of the payee. But the case goes much farther. The record presented the exact state of facts contemplated in the suggestion of Mr. Justice Davis quoted, and apparently relied on in Bank v. Cook, supra; but the court clearly held that neither the payment of the money by the bank, under such circumstances, nor the subsequent entry of the cheek in the depositor’s book and its return to him as a canceled check, amounted to an acceptance of the check by the- bank, nor did such acts disclose any intention to accept. On the contrary, the entire conduct of the bank evidenced an intent to do a very different thing, viz., to pay the check. The bank paid out its money on the mistaken assumption that it had before it a proper demand of its depositor; it afterwards charged up and returned the check on a like assumption that it had actually paid the check. But these mistakes affected neither the depositor nor the payee. “ It is further contended that such an acceptance of the check as creates a privity between the payee and the bank is established by the payment of the amount of this check in the manner described. This argument is based upon the erroneous assumption that the bank has paid this check. If this were true, it would have discharged all of its duty and there would be an end of the claim against it. The bank supposed it had paid the check, but this was an error .... Its pretended payment did not diminish the funds of the drawer in the bank, or put money in the pocket of the person entitled to the payment. The state of the account was the same after the pretended payment as it was before: ” Bank v. Whitman, 94 U. S. 343.

It is clear, therefore, that the case of Seventh Nat. Bank v. Cook finds no support in the decisions of the Supreme Court of the United States in like cases. Nor has its doctrine ever received the deliberate sanction and approval of our own Supreme Court in any later case. It is true it was cited with apparent approval in Saylor v. Bushong, 100 Pa. 23, but the decision in the latter case in no wise depended on it. There the payee of a check had neglected to present it for payment for a long period of time after its receipt. During the interval the bank suspended payment. By his own negligence the payee had thus lost his right to any action against the drawer for the recovery of the debt, to satisfy which the check was given. In a subsequent settlement between the bank and its depositor, in which the latter actively participated, he expressly directed that the amount of the check should be deducted from his balance and held by the bank to await the action of the payee. Upon that state of facts the judgment in Saylor v. Bushong can be abundantly sustained on both reason and authority and the same conclusion ought to have been, doubtless would have been, reached had the case of Seventh Nat. Bank v. Cook never been decided.

Although it thus seems to stand unsupported and alone, it must still stand for us as declaratory of the law of Pennsylvania. We can neither reverse nor ignore it. We must follow it as far as it actually goes, but we are unwilling to stretch its doctrine so as to carry us a step farther in that direction. When Bank v. Cook was decided the Act of May 10, 1881, P. L. 17, had not yet been passed. Then an acceptance by matter in pais was just as effective as one in writing signed by the acceptor. That act, however, declares “that no person within this state shall be charged, as an acceptor on a bill of exchange, draft or order drawn for the payment of money, exceeding $20.00, unless his acceptance shall be in writing, signed by himself or his lawful agent.” We are now asked to say that the mistake of the bank in paying out the money without the indorsement of the payee, and its subsequent and consequent charging of the check against the account of the drawer, not only amounted to an acceptance of the check by matter in pais, but to an acceptance in writing signed by the acceptor. This we are unable and unwilling to do. To so hold would be to attempt, .without warrant, to evade the clearly expressed mandate of the legislature. The case of Bank v. Cook, so often referred to, furnishes no support for the conclusion we are now asked to adopt, whilst sound reason and high authority unite to lead us in the other direction : Maginn v. Dollar Savings Bank, 131 Pa. 362; Bank v. Lindeman, 161 Pa. 199. We therefore hold that the evidence in this case wholly fails to establish that the bank ever became bound as an acceptor of the check and consequently that, in so far as this action rests on an alleged acceptance, the plaintiffs have no right to maintain it.

It is ingeniously argued, however, by the learned counsel for the appellee that “ the case at bar is not an attempt to charge a person as an acceptor pro forma, but is brought on the theory that the bank, having charged the amount of the check to the drawer’s account and settled with him, using the check as a voucher, holds the amount of the check for the true owner thereof.” This argument plainly rests on the assumption that the bank, after having negligently paid out the money called for by the check, without thé indorsement of the payee, could deplete its depositor’s account by attempting to charge it to him, or could use the check as a voucher against him on a settlement after he acquired knowledge of the facts and demanded his entire balance. Such an attempt, on the part of the bank, would be wholly futile. The bank had no more right to charge to him a check without the required indorsement than one without a signature. His balance in bank was precisely the same after the mispayment that it was before. The bank therefore held no money of which the plaintiffs could rightfully say it was money had and received for their use and benefit.

As we view the case, then, the inability of the plaintiffs to establish the material averment in their'statement of claim, that the bank “ did then and there accept said check,” is a flat bar to their right to recover in this action, and further litigation between the parties would be unavailing. The thirteenth assignment of error is sustained and this renders any consideration of the numerous remaining assignments unnecessary.

Judgment reversed.


author:
WICKERSHAM, Judge:
      LIPEZ, Judge,

text:
    456 A.2d 151
    Anthony BERSANI, Jr., a minor, by his parent and natural guardian, Anthony BERSANI, Appellant, v. SCHOOL DISTRICT OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued June 22, 1982.
    Filed Dec. 23, 1982.
    Reargument Denied March 4, 1983.
    Petition for Allowance of Appeal Denied June 15, 1983.

      Joanne E. Kleiner, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal from a lower court order granting a motion for summary judgment in favor of appellee School District of Philadelphia (hereinafter the School District). Appellants Anthony Bersani, Jr., and his father (hereinafter Bersani) filed a complaint in trespass on July 27, 1977. The School District answered on August 10, 1977. Discovery was then begun but not completed. On December 27, 1978, the School District filed a motion for summary judgment, which was denied on March 1, 1979.

On July 5, 1979, the lower court granted Bersani leave to amend his complaint. Two amended complaints were subsequently filed, one on July 12, 1979, and the other on August 22, 1979. More discovery and pleadings followed. On April 10, 1981, the lower court granted a second motion for summary judgment by the School District. This appeal followed.

The pertinent facts are as follows. On the evening of May 3, 1977, Anthony Bersani, Jr., age nine, was playing softball in the schoolyard of the Yare Junior High School in Philadelphia. The game was not an organized school activity; each player supplied his own equipment. Bersani played the position of catcher during the game. At one point as Bersani crouched near home plate the batter swung at a pitch and accidentally struck him in the head with the bat. Bersani suffered a fractured skull, seizures, and other injuries as a result of the blow.

Bersani contends that the painted marking which served as home plate at the playground was positioned too closely to the fence of the schoolyard to allow enough room for a catcher to position himself safely behind home plate. The diamond and home plate were positioned for the game of pimpleball, which is played under rules similar to baseball except that no bats are used; the ball used is of a balloon type and it is struck by the offensive player’s hand rather than by a bat. Because no bat is used in pimpleball, less room is needed behind home plate than in softball or baseball.

Bersani frames the first question involved as follows:

Was [the] lower court which granted Defendant’s motion for summary judgment bound by principles of Res Judicata and Rule of the Case?

Brief for Appellant at 7.

Bersani points out that while the lower court granted a motion for summary judgment in favor of the School District on April 10, 1981, a prior motion for summary judgment by the School District had been denied by a different lower court judge on March 1, 1979.

Absent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Eck, 272 Pa.Super. 406, 416 A.2d 520 (1979). See also Justice Roberts’ opinion in Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) (trial judge may overrule suppression judge based on new evidence).

Here, during the period between the two rulings of the lower court on the motions for summary judgment, Bersani filed two amended complaints; several interrogatories were filed and answered and many other docket entries were made. Bersani even averred in his answer to the first motion for summary judgment that discovery was not yet complete, that no employees of the School District had yet been deposed, that his interrogatories had not yet been answered, and that eyewitnesses to the incident had not yet been deposed. In answers to the interrogatories it was revealed that one reason the fense to the schoolyard was never closed was in order to allow easy access in the event of an emergency and that the markings on the schoolyard were for a game other than baseball among many other facts. The action of the second lower court judge in considering a second motion for summary judgment, even though the prior motion had been denied, is justified by the large amount of new information added to the record in the time period between the two motions.

Bersani phrases the next two issues as follows:

Did Defendant owe an affirmative duty of care to Plaintiff?
Did Defendant breach its duty of care owed to Plaintiff?

Brief for Appellant at 7.

Bersani argues that he was struck in the head by the batter as he played catcher because the School District had placed the painted marking that served as home plate too close to a backing fence: there was too little room for both players in the area of home plate and the resultant crowding led to the batter swinging at pitches near the catcher’s head. The painted diamond and home plate were placed there several years before for the game of pimpleball, which was rarely played by the time of Bersani’s accident. In pimpleball less room is needed in the area of home plate than is necessary in softball. Bersani contends that the School District should have realized that children would use the pimpleball diamond for softball games and, therefore, it should have placed home plate so as to allow them to play softball safely or taken steps to warn them of the potentially hazardous overcrowding around home plate.

Summary judgment “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. No. 1035(b). Summary judgment is to be granted only in the clearest of cases; all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). In passing on a motion for summary judgment the lower court must examine the record in the light most favorable to the non-moving party. Hankin v. Mintz, 276 Pa.Super. 538, 419 A.2d 588 (1980).

Here, the lower court found that Bersani was a public invitee. Section 332 of the Restatement (Second) of Torts (1965) (cited with approval in Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351 n. 2, 414 A.2d 100, 103 n. 2 (1980)), states, in pertinent part: “A public invitee is a person who is invited to enter or remain on. land as a member of the public for a purpose for which the land is held open to the public.” There is evidence on the record before us that Bersani was an invitee at the playground, including a statement in the School District’s second motion for summary judgment that, “[t]he gates to the schoolyard were left open pursuant to a long standing policy of the School District to allow access to the school yard by children in the neighborhood.” Reproduced Record at 12. Viewing the record in the light most favorable to the non-moving party, the lower court’s finding that Bersani was a public invitee is supported.

In Atkins v. Urban Redevelopment Authority of Pittsburgh, supra, the Supreme Court of Pennsylvania adopted section 343 of the Restatement (Second) of Torts (1965), which was quoted as follows:

Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger, (emphasis added).

489 Pa. at 351, 414 A.2d at 103-04 (footnote omitted). The Pennsylvania Supreme Court went on to note that:

It is clear from this section, and the comments thereto, that liability depends not simply on the status of the injured party (e.g., ‘licensee’ v. ‘invitee’), but on many variables. Major variables include the purposes of the invitation, the obviousness of the danger, the likelihood that the invitee will realize the danger and will take steps to protect himself, the nature of the land and the purposes for which it is used.

489 Pa. at 351-52, 414 A.2d at 104 (footnotes omitted).

Mr. George Fieo, the principal of Vare Junior High School, testified during a deposition that the bases for the pimpleball game had been painted on the playground several years before Bersani’s accident. The School District was certainly aware that home plate was close to its backing fence as it had created the condition.

In considering whether the School District should have realized that the condition involved an unreasonable risk of harm to the young softball players, we note that School District employees were aware that children played softball and hardball on the schoolyard if for no other reason than that errant balls occasionally broke windows in the school (Deposition of Ranieri at 11). Any reasonable adult would realize the danger resulting from a bat being swung in close proximity to a child’s head. Viewing the evidence in the light most favorable to Bersani, the non-moving party, it can be concluded that the School District should have realized that the crowded conditions around home plate, caused by a too-close backing fence, involved an unreasonable risk of harm to young children who might lack a full appreciation of the potential danger.

Whether nine-year old Bersani should have realized the danger is our next question. The Supreme Court of Pennsylvania stated in Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792 (1958):

Generally speaking, however, the care and caution required of a child is measured by his capacity to see and appreciate danger, and he is held only to such measure of discretion as is usual in those of his age and experience; this being necessarily a varying standard, the question is ordinarily one for the jury and not for the court.

Id., 392 Pa. at 464, 140 A.2d at 798. See also Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 413 A.2d 710 (1979) (whether ten-year old appreciated danger of playing on top of elevator is for jury, not court, to decide).

The danger involved here was not such an obvious one that we can hold as a matter of law that Bersani should have been able to appreciate it and so avoid the accident. While the Pennsylvania Supreme Court has found that the danger of falling from a height should be recognized even by a child, see McHugh v. Reading Company, 346 Pa. 266, 30 A.2d 122 (1943), the court has also held that the danger of crossing a deceptively deep pool of water on thin ice is not such an obvious danger that a nine-year old can be held, as a matter of law, to appreciate it. Cooper v. City of Reading, supra. We find the present situation to be more closely analagous to the circumstances presented in Cooper and Bethay than to those in McHugh. Bersani would have had to appreciate both that the crowded condition around home plate would have resulted in the batter swinging the bat closer to the catcher’s head and that this would increase his chances of being struck in order to appreciate the danger, an analysis much more complex than that required of a child in McHugh.

Bersani has alleged that the School District failed to exercise reasonable care to protect him from the danger resulting from the close backing fence by failing “to warn minor children of the inherent dangers of playing baseball without adequate facilities____” Reproduced Record at 4. An examination of the record in the light most favorable to Bersani reveals that he has presented some evidence so as to satisfy the requirements of each element of section 343 of the Restatement (Second) of Torts (1965). We cannot, therefore, state as a matter of law that the School District is entitled to summary judgment.

We note, finally, that our decision to reverse the lower court order granting summary judgment does not leave the School District with “no alternative but to close down all its school yards and playgrounds after school hours” as is argued in the Brief for Appellee at 17. We hold only that the School District is not entitled to summary judgment and not that the owner of a playground is unfailingly liable for injuries incurred by children playing there.

Order granting summary judgment reversed and case remanded for proceedings consistent with this opinion.

LIPEZ, J., filed a dissenting statement.

LIPEZ, Judge,

dissenting:

I dissent. In my judgment, there is lacking the requisite dangerous condition of the land to impose liability.

      . An order that terminates the litigation between the parties is final and, therefore, appealable. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977).
      An order granting summary judgment in favor of the School District of Philadelphia was issued on April 10, 1981. Appellant Bersani filed his notice of appeal on May 4, 1981, twenty-four days later. This appeal is timely and proper.

      . The School District argues that Bersani’s status as a child at the playground rose no higher than that of a licensee. The duty of inspection is what distinguishes the obligation owed by a possessor of land to invitees from the obligation owed to licensees. Restatement (Second) of Torts § 343 comment b (1965), see also Treadway v. Ebert Motor Company, 292 Pa.Super. 41, 49, 436 A.2d 994, 998 (1981) (duty to inspect distinguishes obligation owed by possessor of land to business visitors from that owed to licensees). As Bersani alleges that the School District created the dangerous condition considered here and, therefore, had knowledge of it, the duty of the possessor to inspect for dangerous conditions is irrelevant to our analysis. Bersani’s status, as between an invitee and a licensee, is not, therefore, crucial to our analysis either.

      . Bersani phrases his remaining issues as follows:
      Did nine year old Plaintiff assume risk of injury by participating in an unsupervised ball game on Defendant premises?
      Would finding of liability against Defendant impose an unreasonable burden upon Defendant?
      Brief for Appellant at 7.
      Because of our disposition of this case, we need not address these issues.


author: MONTEMURO, Judge:

text:
    456 A.2d 156
    Gerard J. BOYLE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1981.
    Filed Jan. 14, 1983.
    Petition for Allowance of Appeal Denied Sept. 2, 1983.

      Lee M. Herman, Philadelphia, for appellant.
    Joseph M. Hankins, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

The sole issue on this appeal is whether an action brought by an insured to enforce an uninsured motorist coverage endorsement in a policy of insurance is governed by the two-year tort statute of limitations of 42 Pa.C.S.A. § 5524(2) or by the six-year statute of limitations prescribed for contracts in 42 Pa.C.S.A. § 5527(2). This is a case of first impression in the appellate courts of this jurisdiction. We hold that the six-year statute of limitations governing actions on contracts is the proper limitation. An action by an insured against his automobile insurance carrier essentially sounds in contract rather than in tort, even where the insured is recovering for personal injuries sustained, in an accident with an uninsured motorist.

The events giving rise to this appeal are as follows. On November 1, 1973, appellant, Gerard J. Boyle, was involved in an automobile accident with an uninsured driver. The parties agree that a policy of insurance was in effect between them and that it contained the uninsured motorist coverage endorsement which is required to be offered by statute, 40 P.S. § 2000. On November 15, 1973, Boyle notified appellee, State Farm, of the accident and of the uninsured status of the other driver, but no further action was taken at this time by either party.

On November 1, 1979, Boyle, through counsel, filed a petition to compel appointment of arbitrator with the Court of Common Pleas of Philadelphia County, pursuant to a provision in the insurance policy that disputes regarding uninsured motorist coverage shall be referred to arbitration. The court appointed an arbitrator and on January 10, 1980, an arbitration hearing was held at which time State Farm raised the defense of the statute of limitations, contending the two-year statute governing personal injury actions was applicable. On May 27, 1980, the arbitrator delivered an award in favor of Boyle in the amount of Fifty-five Hundred ($5,500.00) Dollars and also concluded that the claim was not barred by the statute of limitations.

Subsequently, State Farm filed a petition to modify or correct arbitration award with the Court of Common Pleas, pursuant to 5 P.S. § 171(d), alleging that the award was against the law because the two-year statute of limitations barred the insured’s claim. The court ordered the award to be corrected to read “Award is hereby entered in favor of the defendant, State Farm Mutual Automobile Insurance Company since this uninsured motorist’s claim is barred by the applicable statute of limitations.” Judgment was entered in favor of State Farm. The court wrote no separate opinion, but referred generally to an opinion in a previous arbitration case, DiUmberto v. Merchants Mutual Insurance Co., American Arbitration Association Case 14 20 039968H (1969) (Kramer, Arb.). Boyle filed a motion for reconsideration which was denied and a timely appeal was taken to this court.

Initially, we note that since the arbitration proceedings and award were pursuant to the Act of 1927, our review of the award is similar to that of a jury verdict. Every inference of fact must be drawn in favor of sustaining the award; however, mistakes of law may be rectified. Ben Construction Co., v. Sanitary Authority of the City of Duquesne, Allegheny County, 424 Pa. 40, 225 A.2d 886 (1967). It is equally true, however, that an appellate court is in no way bound by a trial court’s conclusions of law based on findings of fact. First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 422 A.2d 1074 (1980) . Where the facts are not in dispute, the question of whether the statute of limitations on a claim has run is a question of law for the court. Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959); Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610 (1981) . Thus, this court is free to substitute its own determination on this issue independently of the conclusion of the arbitrator and of the order of the court which was in conflict with that conclusion.

Appellee, State Farm, raises several arguments in support of the application of the two-year personal injury statute of limitations. While we find none of them persuasive, we shall address each individually.

First, it is argued that the contractually required uninsured motorist coverage obligates the insurer only to:

“Pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured.” (Emphasis added).

State Farm would have us construe the phrase, “legally entitled to recover as damages,” to mean that the insured must establish every element of the claim against the uninsured motorist in order to recover under the policy; this would include asserting the claim within the two-year period in which the insured would bring a personal injury action. It argues that since the insured could not bring a personal injury action against the uninsured motorist more than two years after the date of the personal injury, the insured is no longer “legally entitled to recover as damages,” and thus, the insurer has no Obligation to pay. Essentially, appellee, State Farm, views the action by the insured as one in tort for personal injuries with the insurer merely providing an alternative fund from which the insured may recover damages in the event the tortfeasor proves to be impecunious.

This argument is vitiated by nature of the insurer’s obligation to the insured which arises totally out of the contract of insurance. Their obligation is not the same as that of the uninsured motorist. State Farm does not represent the interest of the uninsured motorist nor is their obligation that of a successor to the uninsured motorist. The insurer represents itself and its rights against, and obligations to, the insured are determined solely by the insurance contract. Thus, the six-year statute of limitations is the more appropriate because the relationship between the parties is established by the contract. If we were to accept State Farm’s construction, it would be tantamount to saying that the relationship between Boyle and State Farm arises only from the accident, and that the accident and the laws pertaining to personal injury actions solely determine State Farm’s obligations to Boyle. We disagree. The happenstance of an accident with an uninsured motorist merely triggers the insurer’s obligation to the insured, it does not establish the terms of that obligation.

Furthermore, State Farm’s construction of the phrase “legally entitled to recover as damages” would enable the insurer to assert the personal injury statute of limitations available to the tortfeasor. A statute of limitations such as that in 42 Pa.C.S.A. § 5524(2) is a procedural defense arid therefore personal to the tortfeasor. 7 Blashfield Automobile Law and Practice, Section 274.9, pp. 73-74 (3d ed. 1966), 12 Couch on Insurance 2d, § 45.627, p. 571-572 (Anderson 1964).

State Farm also points out that if a six-year statute of limitations is established an insured will benefit from being involved in an automobile accident with an uninsured vis-avis insured motorist because the insured would have an additional four years in which to file suit against his insurance carrier. They argue that this creates an anomalous situation detrimental to insurance carriers. While this result is almost certain to occur, we do not think that it mandates an opposite result. The legislature has established six years as the statute of limitations on actions on express contracts, 42 Pa.C.S.A. § 5527, and the courts have found this to be applicable to insurance contracts. Marshall v. Aetna Casualty and Surety Company, 643 F.2d 151 (3rd Cir.1981); Wright v. Allstate Insurance Co., 271 Pa.Super. 559, 414 A.2d 395 (1979). We do not see any reason to make an exception for actions to enforce uninsured motorist coverage. State Farm argues that once the two-year statute of limitations has run, they are barred from pursuing their subrogation rights against the uninsured motorist and thus it is unfair to allow the insured to recover. Again, while this eventuality is possible, it is more apt to be the exceptional case than the common event. In balancing the equities of the situation we do not find the insurer’s argument of sufficient weight to require the shorter limitation period.

Appellee’s second argument is that statutory construction and judicial precedent require us to apply the two-year personal injury statute of limitations. It asserts that language in § 5527 mandates a deferral to § 5524 in the instant case. § 5527 reads in part:

“The following actions and proceedings must be commenced within six years:
(2) An action upon a contract, obligation or liability founded upon a bond, note or other instrument in writing, except an action subject to another limitation specified in this subchapter ” (emphasis added)

The emphasized language cited above, “except an action subject to another limitation specified in this subchapter,” does not contemplate the substitution of a personal injury limitation in a contract action. This exception is clearly a modification of the preceeding phrase, “[A]n action upon a contract, obligation or liability found upon a bond, note or other instrument in writing.” Thus the exception is limited to contract actions. So construed, the exception simply expresses the general rule of statutory construction that the specific will control the general. 1 Pa.C.S.A. § 1933. Action on written contracts are subject to the six-year limitation of § 5527 unless the contract involved is of a type to which a more specific limitation is applicable. See, e.g. § 5501 (allowing certain provisions of Title 13 relating to the U.C.C. to take precedence); § 5521 (actions on foreign contracts subject to foreign limitations in certain instances); § 5523(2), (3) (actions on certain bonds subject to one year limitation); § 5525 (actions on contracts for the sale, construction or furnishing of tangible personal property or fixtures subject to four year limitation). Since the insurance contract does not fit within the parameters of any of the more specific limitations, § 5527 is applicable and an action on such a contract must be brought within six-years. Marshall v. Aetna Casualty and Surety Co., supra; Wright v. Allstate Insurance Co., supra.

State Farm also cites various precedents which they claim support the shorter statute of limitations. However, they are of little merit since the cases relied upon are easily distinguished from the present case and thereby inapposite. Each of the cases exhibits a similar fact pattern; i.e., a plaintiff seeking redress from personal injuries after the lapse of the two-year limitation, brings an action against the tortfeasor based on the breach of an express or implied warranty. Almost invariably, these actions are dismissed by the courts based on a finding that the action essentially sound in tort, rather than in contract, and are therefore barred by the shorter statute of limitations. However, these cases are direct actions against the alleged tortfeasor with the rights and obligations of the parties established by the tortious incidents. Whether nominated assumpsit or trespass, the injured plaintiffs rights against the tortfeasor are derived directly from the incident. In the instant case, an insurer, not a tortfeasor, is the defendant. The rights and obligations of the parties are derived from the insurance contract. The insurer’s obligation to pay is conditioned upon the insured suffering bodily injury, however, this obligation arises only from the contract. Therefore the statute of limitations governing contracts is applicable.

State Farm’s third argument purports to cite authority in other jurisdictions which have applied the personal injury statute of limitation under the same or similar circumstances as herein. Yet, a review of the authorities demonstrates that an overwhelming majority have opted for the longer contract limitation.

Furthermore, the appellee cites cases distinguishable from those herein in that each concerns a claim where the insured has been killed in an accident with an uninsured motorist. In such an instance some courts have construed the phrase “legally entitled to recover as damages” to require compliance with the shorter statute of limitations in a wrongful death action. Sykes v. Fireman’s Fund Insurance Co., 269 F.Supp. 229 (S.D.Fla.1967); Bocek v. Inter-Insurance Exchange of the Chicago Motor Club, 175 Ind. App. 69, 369 N.E.2d 1093 (1977); Country Mutual Insurance Co. v. National Bank of Decatur, 109 Ill.App.2d 133, 248 N.E.2d 299 (1969); Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1 (Mo.App.1975).

The rationale is that wrongful death statutes often include a statute of limitations as a substantive element of the cause of action, and thus, the insured’s family or representative is not “legally entitled to recover as damages” unless this element, as well as other substantive elements, is alleged and proved. Usually, this distinction is made when the statute of limitations is set forth within the Death Statute itself. However, the present case is clearly distinguishable in that it involves a procedural statute of limitations; i.e., a statute of limitation as opposed to a statute of repose. Overmiller v. D.E. Horn & Co., 191 Pa.Super. 562, 159 A.2d 245 (1960). The limitation bars only the remedy, not the right; it can only be asserted by the tortfeasor, not the insurer. Appellee-State Farm’s failure to cite any persuasive authority in support of its position, in conjunction with the overwhelming majority of other courts, each construing statutory and policy language very similar to that herein, which favor the application of the contracts statute of limitations, further assures us that we are correct.

Finally, we find, contrary to appellee, State Farm’s argument, that the keynote phrase “legally entitled to recover as damages” is ambiguous and therefore must be construed in a manner most favorable to the insured. Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964). State Farm seeks to justify the use of this language by arguing that it is mandated by statute, 40 P.S. § 2000, and by regulation, 31 Pa.Code, Ch. 63, § 63.1 et seq., and so State Farm should not suffer the consequences of our finding. We do not think the fact that the form of the uninsured motorists coverage endorsement is subject to minimum standards, 31 Pa.Code § 63.3, in any way supports State Farm’s contention. The purpose of the uninsured motorist law has been frequently and consistently interpreted by our courts as providing protection to innocent victims of uninsured drivers. As stated by our supreme court:

“[S]uch statutes as designed to give monetary protection to that ever hanging and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.” Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) (quoting Katz v. American Motorist Insurance Co., 244 Cal.App.2d 886, 53 Cal.Rptr. 669 (1966)).

The legislative intent in enacting the uninsured motorist law requires a liberal construction of the statute, and a pronounced propensity on the part of the court to find coverage unless equally strong legal or equitable considerations to the contrary are present. Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 80, 331 A.2d 711, 716-17 (1974). See also 1 Pa.C.S.A. § 1928.

We do not think that State Farm has sustained the burden of producing sufficient reasons to overcome the presumption in favor of coverage. We find that, in promulgating the uninsured motorist law, with the intent of providing maximum coverage to motorist injured by uninsured motorist, the legislature intended that the six-year statute of limitations should be applied.

Having decided which statute of limitations is applicable we must now determine when the statute begins to run and when it is tolled. With regard to the former determination, an action for benefits under an uninsured motorist coverage endorsement is essentially an action to enforce a contract. An action to enforce a contract does not accrue until the party’s rights under the contract have vested. Under the terms of the uninsured motorist coverage endorsement, the insured’s right to payment did not vest until: (1) the insured was in a motor vehicle accident, and (2) the insured sustained bodily injury as a result of that accident, and (3) the insured knows of the uninsured status of the other owner or operator. When all three of these events have occurred the insured’s cause of action accrues and the six-year statute of limitations begins to run. 42 Pa.C.S.A. § 5502. With regard to the latter determination we find, in the present case, that the statute of limitations was tolled by the filing of the Petition to Compel Appointment of Arbitrators on November 1, Í979.

Consequently, we find the appellant-insured’s action was not barred by the statute of limitations and therefore, we vacate the order of the lower court and remand this case with instructions to confirm the award of the arbitrator. We do not retain jurisdiction.

Reversed and remanded.

      . § 2000. Motorists uninsured, insurance protection.
      (a) No motor vehicle liability policy of insurance against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 or article XIV of "The Vehicle Code,” act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom ... (Footnote omitted)

      . The arbitration provision of the policy stated:
      "10. Arbitration. If any person making claim under coverage U  and the company do not agree that such person is legally entitled to recover damages from the owner operator of an uninsured motor Vehicle because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then either party shall have the right to arbitrate such controversy under the provisions of the Pennsylvania Arbitration Act of 1927 , including any amendments thereto." (emphasis in the original)

       Uninsured Motorist Coverage

       Act of April 25, 1927, P.L. 381, No. 248, § 1 et seq., 5 P.S. § 161 et seq.

      . § 5524. Two year limitation.
      The following actions and proceedings must be commenced within two years:
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

      . State Farm cites the following cases exhibiting this pattern: Jones v. Boggs and Buhl, Inc., 355 Pa. 242, 49 A.2d 379 (1946) (action against seller for fur coat under breach of warranty theory to recover for skin disease attributable to coat barred by personal injury statute of limitation); Sykes v. Southeastern Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973) (action against transportation carrier under theory of express warranty of safe carriage to recover for injuries from accident barred by statute of limitations since it was essentially in tort); Schwartz v. Board of School Directors. 71 Pa.D & C2d 339 (1975) (action against school under breach of warranty theory for injuries to student in workshop action barred by personal injury statute of limitations); But, c.f. Salvador v. Atlantic Steel Boiler Co., 256 Pa.Super. 330, 389 A.2d 1148 (1978) (action for injuries sustained in boiler explosion brought under theory of breach of implied warranty under UCC not barred because statute expressly grants longer statute of limitation.)

      . As far as our research has been able to determine the following courts have decided this issue in favor of the contract limitation: DeLuca v. Motor Vehicle Accident Indemnification Corporation, 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Schleif v. Hardware Dealers Mutual Fire Insurance Co., 218 Tenn. 489, 404 S.W.2d 490 (1966); Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1969); Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968); Hartford Accident and Indemnity Co. v. Mason, 210 So.2d 474 (Fla.App.1968); Sahloff v. Western Casualty and

        Surety Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969); Pickering v. American Employees Insurance Company, 109 R.I. 143, 282 A.2d 584 (1971); Turlay v. Farmer's Insurance Exchange, 259 Or. 612, 488 P.2d 406 (1971); Detroit Automobile Inter-Insurance Exchange v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972); Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972); Transnational Insurance Co. v. Simmons, 19 Ariz.App. 354, 507 P.2d 693 (1973); Franco v. Allstate Insurance Co., 505 S.W.2d 789 (Texas 1974); Selected Risks Insurance Co. v. Dierolf, 138 N.J.Super. 287, 350 A.2d 526 (1975); Van Hoozer v. Farmer’s Insurance Exchange, 219 Kan. 595, 549 P.2d 1354 (1976); Lemrick v. Grinnel Mutual Reinsurance Co., 263 N.W.2d 714 (Iowa, 1978); Edwards v. State Farm Insurance Co., 574 S.W.2d 505 (Mo.App.1978); Allstate Insurance Co. v. Spinelli, 443 A.2d 1286 (Del.Supr.1982). Courts which have opted for the personal injury limitation include: Brown v. Lumbermens Mutual Casualty Co., 285 N.C. 313, 204 S.E.2d 829 (1974); Vaughn v. Collum, 236 Ga. 582, 224 S.E.2d 416 (1976); State Farm Mutual Auto Insurance Co. v. Wharton, 88 Nev. 183, 495 P.2d 359 (1972).

      . The other elements required to be alleged and proved are fault on the part of the uninsured motorist, damages on the part of the plaintiff and the existence of a contract of insurance containing an uninsured motorist coverage endorsement with the defendant-insurer.

      . We do not intimate that this court would apply this rationale and find for a shorter statute of limitations in a case involving an uninsured motorist’s claim by the' family or legal representative of a decedent-insured. The Death Action Statute, 42 Pa.C.S.A. § 8301, and the Survival Action Statute, 42 Pa.C.S.A. § 8302, contain no substantive limitation period (But, c.f. 12 P.S. § 1601, § 1603). This issue is not before us and we do not decide it at this time. We note that other jurisdictions have applied the contract limitation period where the wrongful death statute contained no substantive limitation period. Franco v. Allstate Insurance Co., supra.

      . The parties do not specify at what time the insured learned of the uninsured status of the other owner or operator. Appellee, State Farm, asserts that it was "not later than November 15, 1973.” In any event, it is immaterial since the appellant-insured tolled the statute by the filing of this petition on November 1, 1979, the action is not barred by the statute of limitations even if the insured knew of the uninsured status of the other driver at the time of the accident.