author: McEWEN, Judge:

text:
    551 A.2d 1086
    COMMONWEALTH of Pennsylvania v. Billy Robert HIPP, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed Dec. 5, 1988.

      Jenny Steinen, Assistant Public Defender, Philadelphia, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   McEWEN, Judge:

We here consider whether the results of a medical purposes blood alcohol test, voluntarily provided by hospital personnel to a police officer, are admissible at trial where the defendant subsequently exercised his statutory right to refuse to submit to a blood-alcohol test. We find no statutory or constitutional impediment to the introduction of such evidence and, therefore, affirm the judgment of sentence imposed after appellant was found guilty of driving while under the influence of alcohol.

Appellant was transported by ambulance to Chester County Hospital on December 16, 1983, for emergency treatment following a two-car collision. Blood was withdrawn from appellant by hospital personnel for medical purposes and was tested, pursuant to the routine hospital procedure, for alcohol content. A police officer charged with the investigation of the accident arrived at the hospital shortly thereafter and spoke with appellant in the emergency room. The officer, noting that appellant’s eyes were bloodshot and his speech slurred and detecting a strong odor of alcohol on appellant’s breath, requested that hospital personnel obtain a blood sample from appellant to be tested for alcohol content. A member of the emergency room staff advised the officer that a test would be unnecessary as one had already been performed, and then volunteered the results of that test to the officer. The officer subsequently placed appellant under arrest, issued Mi randa warnings, and requested that he submit to a blood alcohol test. Appellant refused and the officer left the hospital. The Commonwealth subpoenaed the results of the medical purposes blood test and at trial, the laboratory technician testified as to the results of that test. Testimony concerning appellant’s refusal to submit to the blood alcohol test requested by the officer was also admitted into evidence over objection. Appellant was found guilty of driving under the influence, in violation of 75 Pa.C.S. § 3731(a)(1) and (a)(4), and of overtaking a vehicle on the left, and thereafter sentenced to serve a term of imprisonment of from seven days to twenty-three and one-half months, and to pay a fine of $300.00. A divided panel of this Court found that the trial court had erred in admitting evidence of the medical purposes blood test since appellant had been denied the opportunity to exercise the statutory right of refusal to submit to such a test as provided by Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).

Appellant first argues that the results of the medical purposes blood alcohol test should have been suppressed since the hospital personnel, when they volunteered the results of the blood alcohol test to the investigating officer, violated the regulations of the Pennsylvania Department of Health concerning the confidentiality of medical records. Appellant’s argument is predicated upon the following two regulations promulgated by the Pennsylvania Department of Health:

Records and reports of examinations of all specimens shall be confidential.

28 Pa.Code § 5.53.

All records shall be treated as confidential. Only authorized personnel shall have access to the records. The written authorization of the patient shall be presented and then maintained in the original record as authority for release of medical information outside the hospital.

28 Pa.Code § 115.27.

The Commonwealth argues, however, that the general provisions providing for confidentiality of all medical records are subject to the exceptions contained in Section 1547(j) and Section 3755 of the Motor Vehicle Code, pertaining to the release by hospital personnel of results of blood alcohol tests. We agree.

The proper role of this Court, when called upon to construe statutory provisions, is to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921. The Statutory Construction Act, which is applicable to both statutes and the Pennsylvania Code, 1 Pa.C.S. § 1502(a)(1), provides that when a general provision is in conflict with a specific provision in the same or another statute, the two provisions shall be construed, if possible, to give effect to both. If, however, “the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail1 Pa.C.S. § 1933 (emphasis supplied).

The general provision applicable to the case at bar is the blanket confidentiality provided to all medical test results and records. The specific, and conflicting, provisions are the sections of the Vehicle Code which provide that no hospital or medical personnel may refuse to perform, or to provide the results of, a blood alcohol test when requested to do so by a police officer.

Since the specific provisions of the Vehicle Code are clearly in conflict with the general regulations promulgated by the Department of Health, and cannot be reconciled, the provisions of the Vehicle Code dealing specifically with blood alcohol tests must be construed as exceptions to the general and earlier enacted provisions of the Pennsylvania Code providing for the confidentiality of all medical records. See and compare: Olshansky v. Montgomery County Election Board, 488 Pa. 365, 369-70, 412 A.2d 552, 554 (1980); Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 285, 404 A.2d 410, 415 (1979). We, therefore, reject the argument of appellant that the results of the medical purposes blood alcohol test could not be released to the investigating officer due to the confidentiality provisions of the Pennsylvania Code.

Appellant next argues that admission of the results of the medical purposes blood alcohol test violated his legitimate expectation of privacy in his personal medical records, a right guaranteed to him by the United States Constitution as well as by Article I, § 8, of the Pennsylvania Constitution. The administration of a blood test is a search within the meaning of the Fourth Amendment to the United States Constitution and Article I, § 8, of the Pennsylvania Constitution, if performed by an agent of, or at the direction of, the government. Commonwealth, Department of Transportation v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987); Commonwealth v. Murray, 441 Pa. 22, 25, 271 A.2d 500, 501 (1970); Koleski v. Park, 363 Pa.Super. 22, 30, 525 A.2d 405, 408 (1987); Commonwealth v. Cieri, 346 Pa.Super. 77, 82-85, 499 A.2d 317, 320-321 (1985); Commonwealth v. Funk, 254 Pa.Super. 233, 241, 385 A.2d 995, 999 (1978). The blood test in the instant case, however, was performed prior to the arrival of any officer and was conducted as a routine part of the emergency treatment of the appellant, and not at the request of any governmental official. Thus, the medical purposes blood test itself did not violate appellant’s constitutional rights. See: Commonwealth v. Goldhammer, 322 Pa.Super. 242, 246-47, 469 A.2d 601, 603 (1983), aff'd., 507 Pa. 236, 489 A.2d 1307 (1985), rev’d; Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), conformed to Commonwealth v. Goldhammer, 509 Pa. 546, 505 A.2d 601 (1986), on remand, Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, Goldhammer v. Pennsylvania, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987).

Appellant argues, however, that his constitutional rights were violated when hospital personnel volunteered the results of that test to the police officer and when the results of that test were obtained, pursuant to a subpoena, by the government and introduced at trial. Individuals clearly have a privacy interest in their medical records which “finds explicit protection in the Pennsylvania Constitution, Art. I, § 1 — ” In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 150, 415 A.2d 73, 77 (1980). Our Supreme Court has held that “[t]he protection provided by Article I, § 8, of the Pennsylvania Constitution extends to those zones where one has a reasonable expectation of privacy.” Commonwealth v. DeJohn, 486 Pa. 32, 49, 403 A.2d 1283, 1289 (1979), cert. denied, Commonwealth v. DeJohn, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980).

While we agree with appellant that his reasonable expectation of privacy in his medical records is a constitutionally protected interest, we hasten to note that the proper function of the Fourth Amendment to the U.S. Constitution, as well as Art. I, § 1 and Art. I, § 8 of the Pennsylvania Constitution, is “to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber v. California, 384 U.S. 757, 758, 86 S.Ct. 1826, 1829, 16 L.Ed.2d 908, 912 (1966). Accord: Koleski v. Park, supra at 30, 525 A.2d at 408.

Section 3755 of the Motor Vehicle Code provides that hospital personnel shall promptly take blood samples from those persons who require medical treatment in a hospital emergency room when probable cause exists to believe that that person violated Section 3731 of the Vehicle Code. Thus, where a police officer determines that probable cause exists to believe that the individual was operating a motor vehicle while under the influence, and requests hospital personnel to obtain a blood sample for testing, hospital personnel have an affirmative duty to perform the test and report the results to the police officer. Commonwealth v. Haynos, 863 Pa.Super. 1, 12 n. 8, 525 A.2d 394, 399 n. 8 (1987); Commonwealth, Department of Transportation v. Emory, 91 Pa.Cmwlth. 580, 582, 498 A.2d 26, 28 (1985). Appellant has not challenged the finding that the investigating officer, after speaking with appellant in the emergency room, finding him boisterous and somewhat incoherent, and observing a strong odor of alcohol on his breath as well as bloodshot eyes and slurred speech, had probable cause to believe appellant had been operating a vehicle while under the influence of alcohol. See and compare: Commonwealth v. Kelly 365 Pa.Super. 28, 34, 528 A.2d 1346, 1348 (1987), allo. denied, 517 Pa. 598, 535 A.2d 1057 (1987); Commonwealth v. Reynolds, 256 Pa.Super. 259, 268, 389 A.2d 1113, 1117 (1978); Commonwealth v. Funk, supra 254 Pa.Super. at 238-39, 385 A.2d at 998. Once the officer had determined that there was probable cause to believe that appellant had violated 75 Pa.C.S. § 3731, the officer was authorized by Section 1547(a) of the Vehicle Code to request that hospital personnel obtain a blood sample for testing purposes. See: Commonwealth v. Kelly, supra; Commonwealth v. Funk, supra. When the officer in the instant case made such a request, hospital personnel informed him that a test would be unnecessary and volunteered the results of the medical purposes blood alcohol test. The hospital personnel certainly acted in compliance with 75 Pa.C.S. § 3755(a) and 75 Pa.C.S. § 1547(j) when, under these circumstances, they volunteered the results of the blood test to the officer. Since the intrusion upon appellant’s expectation of privacy was “justified”, the constitutional protections afforded appellant were not abridged when the hospital personnel volunteered the test results to the officer, or when the laboratory technician testified at trial, pursuant to a subpoena, as to the results of the medical purposes blood test.

Appellant further argues that since he had refused the officer’s request to submit to a blood test, the officer did not have authority to request that hospital personnel obtain a blood sample. This argument is unsupportable, both legally and factually. The uncontradicted testimony at the suppression hearing established that the officer, after speaking with appellant, determined that there was probable cause to believe that appellant had been driving while under the influence. The officer left the room in which appellant was being treated and approached the emergency room desk:

“When I went to the desk I was going to the desk to inform that I wanted blood drawn for this investigation and I would have to have the blood — the technicians to come down to draw the blood____ I didn’t ask for the results, I was just going to them to advise them that I needed someone to go down to draw blood because I needed to know his blood alcohol count for this investigation____ They informed me [of the results] but I never requested it.” (N.T. 17).

The officer then returned to the room in which appellant was being treated, placed him under arrest, and requested that appellant submit to a blood alcohol test. Appellant refused and the officer left the hospital. The medical purposes blood test was not administered at the direction of the officer, nor were the results of that test requested by the officer. Cf. Commonwealth v. Haynos, supra 363 Pa.Super. at 7, 525 A.2d at 397. Rather, the results were volunteered to the officer by an employee of the hospital, a private individual. “It has long been established that the Fourth Amendment’s prohibition against illegal search and seizure applies only to the actions of governmental authorities, not to the actions of private persons. The government is precluded from using evidence obtained by a private person only if that person acted as an instrument or agent of the state.” Commonwealth v. Goldhammer, supra 322 Pa.Super. at 246-47, 469 A.2d at 603.

However, even if we were to assume, solely for purposes of this appeal, that the hospital employee who volunteered the results of the blood test was acting as an agent of the government, and that a search and seizure, subject to the protections of the Pennsylvania and U.S. Constitutions, occurred, we can discern no basis upon which to suppress the evidence. No one disputes that a police officer who has probable cause to believe that the operator of a motor vehicle is or has been driving while under the influence of alcohol, may request that the operator submit to a chemical test. “Under Section 1547(a) [of the Motor Vehicle Code], the basis for the initial stop and search is the police officer’s reasonable belief that the person from whom the request for a chemical test is being made is driving a motor vehicle while under the influence of alcohol, and thus the search is either incident to a lawful arrest or necessitated by exigent circumstances.” Commonwealth, Department of Transportation v. McFarren, supra, 514 Pa. at 417, 525 A.2d at 1188. Accord: Commonwealth v. Anderl, 329 Pa.Super. 69, 85, 477 A.2d 1356, 1364 (1984). This Court, in Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974), held that a blood alcohol test may be taken even after a suspect’s refusal, without violating a suspect’s constitutional rights, “where the police have probable cause to believe the suspect was driving while intoxicated, in order to get evidence of the blood alcohol level, evidence that is particularly evanescent.” Commonwealth v. Funk, supra 254 Pa.Super. at 241, 385 A.2d at 999.

Moreover, the United States Supreme Court in Schmerber v. California, supra, held that the administration of a non-consensual blood alcohol test was a reasonable search incident to the arrest of the defendant, where there was probable cause to believe the defendant had been operating a motor vehicle while under the influence of alcohol. The Schmerber Court recognized “ ‘the security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Id., 384 U.S. at 767, 86 S.Ct. at 1834, quoting Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). The Court found, however, that the administration of the non-consensual blood test, while implicating constitutionally protected interests in human dignity and privacy, was a reasonable search under the circumstances. The challenged search at issue herein was not the administration of a non-consensual blood test but, rather, involved the results of a previously administered blood test. Such a “search”, namely, recounting to the officer and on the hospital record the test results, is far less intrusive than the administration of a non-consensual blood test. Certainly, even if the officer in the instant case had requested the results of the medical purposes blood test, such a “search” would have been reasonable under the circumstances. See: Commonwealth v. Haynos, supra 363 Pa.Super. at 7, 525 A.2d at 397.

Nor do we find that the fact that appellant refused the officer’s request to submit to a blood alcohol test has any bearing upon the resolution of the issues raised in this appeal. Section 1547(b) of the Vehicle Code provides:

(b) Suspension for refusal.—
(1) If any person placed under arrest for á violation of Section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.

74 Pa.C.S. § 1547(b). While the legislature has provided by statute that a driver, whom the police have probable cause to believe has been operating a vehicle while under the influence of alcohol, may refuse to submit to a chemical test for blood alcohol content, this right of refusal is not a constitutional right but rather is created solely by operation of the statute. “ ‘Neither the Fourth Amendment bar against unreasonable searches and seizures nor Fifth Amendment privilege against self-incrimination prevents the Commonwealth from requiring that a driver submit to a breathalyzer test. A driver therefore does not have a constitutional right to refuse. He has no right to refuse other than as provided in the implied consent law. Neither the Fourth nor Fifth Amendments prevents the admission into evidence of test results or of refusal____ A driver has no constitutional right to refuse and no right to have evidence either of the test results or of the refusal excluded____” Commonwealth v. Funk, supra 254 Pa.Super. at 241-42, 385 A.2d at 999-1000, quoting Commonwealth v. Rutan, 229 Pa.Super. 400, 404, 323 A.2d 730, 732 (1974) (citations omitted). Accord: Commonwealth v. Trefry, 249 Pa.Super. 117, 127-30, 375 A.2d 786, 792-793 (1977).

Appellant here exercised his statutory right to refuse to submit to the blood test requested by the officer. The officer complied with the provisions of the statute in that after appellant’s refusal, no test was performed. Thus, there was no violation of the terms of the statute. Appellant argues, however, that because he refused to submit to the requested blood test, all access to the results of the earlier medical purposes blood test should be forever foreclosed. The express terms of the statute, however, clearly do not support this contention.

Our legislature, cognizant of the fact that there was no constitutional impediment to the administration of a non-consensual chemical test created, in section 1547(b) of the Vehicle Code, a statutory right of refusal. While consent of a driver to a chemical test is implied where the police have probable cause to believe he has violated 75 Pa.C.S. § 3731, a driver may avail himself of the opportunity to refuse such a test. Thus, under the scheme created by the legislature “no matter which alternative a driver chooses, there will be an evidentiary result: either there will be the result of a test, or there will be a fact, refusal, to be taken into account in deciding guilt or innocence.” Commonwealth v. Funk, supra 254 Pa.Super. at 240, 385 A.2d at 999.

However, Section 1547(b) does not require the affirmative consent of the driver prior to the administration of a blood alcohol test as. appellant would have us find. See: Commonwealth v. Haynos, supra; Commonwealth v. Funk, supra. See also: State v. Baker, 502 A.2d 489 (Me.1985); People v. Fite, 267 Cal.App.2d 685, 73 Cal.Rptr. 666 (1968). Cf. State v. Loscomb, 291 Md. 424, 437-38, 435 A.2d 764, 771 (1981). Nor does it create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test. All the statute provides is a limited, statutory privilege to refuse to submit to a chemical test. “Where 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.” Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982). Thus, we find that the refusal to submit to the blood alcohol test as requested by the officer has no bearing upon the admissibility of the results of the medical purposes blood alcohol test.

Appellant’s final argument in support of his request for a new trial is that the trial court erred in admitting both the results of the medical purposes blood alcohol test which showed appellant’s blood alcohol content to be .264%, and testimony concerning his refusal to submit to the blood alcohol test when requested to do so by the investigating officer. Appellant contends that since the results of the blood alcohol test were admitted into evidence, testimony concerning his refusal to submit to the blood alcohol test requested by the officer was inadmissible. We disagree. Section 1547(e) of the Vehicle Code provides:

(e) Refusal admissible in evidence — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

75 Pa.C.S. § 1547(e). Appellant was requested, by the investigating officer, pursuant to subsection (a) of Section 1547, to submit to a blood alcohol test. Appellant refused and the test was not conducted. Subsection (e) of Section 1547 provides that evidence of the refusal is admissible. Thus, the express terms of the statute render evidence of the refusal admissible.

Moreover, subsection (f) of Section 1547 provides:

(f) Other evidence admissible. Subsections (a) through (i) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of alcohol.

75 Pa.C.S. § 1547(f). We find, therefore, that the trial court properly admitted evidence of appellant’s refusal to submit to the blood alcohol test requested by the officer. See and compare: Commonwealth, Department of Transportation v. Murdock, 99 Pa.Cmwlth. 55, 57, 512 A.2d 100, 101 (1986) (the mere fact that a licensee has submitted to blood tests from hospital personnel prior to or subsequent to his refusal to accede to the request of the arresting officer does not absolve him from the mandatory license suspension provisions of Section 1547).

We find that the trial court properly admitted the results of the medical purposes blood alcohol test and evidence of the refusal of appellant to submit to a blood alcohol test as requested by the officer. We, therefore, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Adopted May 25, 1962, amended June 14, 1974, effective June 15, 1974, 4 Pa.B. 1220.

      . Adopted August 29, 1975, effective September 1, 1975, 5 Pa.B. 2233, amended February 10, 1977, effective February 12, 1977, 7 Pa.B. 437.

      . Section 1547(j) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(j), provides:
      No physician, nurse or technician or hospital employing such physician, nurse or technician, and no other employer of such physician, nurse or technician shall be civilly liable for withdrawing blood or obtaining a urine sample and reporting test results to the police at the request of a police officer pursuant to this section. No physician, nurse or technician may administratively refuse to perform such tests and provide the results to the police officer except as may be reasonably expected from unusual circumstances that pertain at the time the request is made, (emphasis supplied)
      Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977; amended Dec. 15, 1982, P.L. 1268, No. 289, § 5, effective in 30 days; amended Feb. 12, 1984, P.L. 53, No. 12, § 2, effective immediately.

      . Section 3755 of the Motor Vehicle Code provides:
      § 3755. Reports by emergency room personnel
      (a) General rule.- — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who are capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician, or governmental officials or agencies.

      (b) Immunity from civil or criminal liability. — No physician, nurse or technician or hospital employing such physician, nurse of technician and no other employer of such physician, nurse or technician shall be civilly or criminally liable for withdrawing blood or obtaining a urine sample and reporting test results to the police pursuant to this section or for performing any other duty imposed by this section. No physician, nurse or technician may administratively refuse to perform such tests and provide the results to the police officer except as may be reasonably expected from unusual circumstances that pertain at the time of admission.

        75 Pa.C. § 3755 (emphasis supplied).

      . Such a construction clearly comports with the purposes and intent of the legislature in enacting the provisions of the Vehicle Code dealing with the offense of driving while under the influence of alcohol. See: Commonwealth v. Mikulan, 504 Pa. 244, 248-49, 470 A.2d 1339, 1341-1342 (1983); Commonwealth v. Hoover, 343 Pa.Super. 372, 375, 494 A.2d 1131, 1133 (1985).

      . Because we find that hospital personnel did not violate any provision of the Pennsylvania Code, we need not determine whether suppression of evidence would be an appropriate remedy where the alleged violation of a regulation was committed by a private individual.

      . This issue properly encompasses arguments based upon both the right to privacy and the right to be free from unreasonable searches since our Supreme Court, in Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), overruled on other grounds, Commonwealth v. Reese, 520 Pa. —, 549 A.2d 909 (1988), "held that the right to be free from unreasonable searches and seizures contained in Art. I, § 8, of the Pennsylvania Constitution is tied into the implicit right to privacy in this Commonwealth." Commonwealth v. DeJohn, 486 Pa. 32, 49, 403 A.2d 1283, 1291 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980).

      . Appellant concedes, as he must, that, under the circumstances of this case, a non-consensual blood test would not have offended the protections afforded by the U.S. Constitution. See: Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); U.S. v. Harvey, 701 F.2d 800, 803 (9th Cir.1983); Commonwealth, Department of Transportation v. McFarren, supra 514 Pa. at 417, 525 A.2d at 1188.


source: Caselaw Access Project

license: Public Domain

text:
    551 A.2d 1094
    CITY OF PHILADELPHIA v. Michael KEILYK and Lorraine H/W Romaldo Ucciferri and Carmells H/W and Richard Drinkwater. Appeal of Theresa SALAMAN.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Dec. 27, 1988.

      Martin A. Ostrow, Philadelphia, for appellant.
    Raymond Ruthrauff, Philadelphia, for Drinkwater, appellee.
    Before CIRILLO, President Judge and WIEAND and McEWEN, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which granted the petition of Richard Drinkwater, (hereinafter appellee), for redemption of real estate sold at tax sale. The order directed Theresa Salaman, (hereinafter appellant), to convey to appellee a one-third interest in the real estate which appellant had purchased at a tax sale, upon payment by appellee of a sum equal to one-third of the sum paid by appellant to the sheriff to acquire the deed to the property. We are compelled to reverse since we find that an owner of an undivided fractional share of real estate may redeem the property only upon payment of the full redemption sum.

Appellee acquired an undivided one-third interest in the premises located at 832-34 South Second Street, Philadelphia, by deed dated November 6,1981, and duly recorded in the Philadelphia County Department of Records. The City of Philadelphia, by reason of delinquent taxes and charges, initiated proceedings to effect the tax sale of the said premises, as a result of which, pursuant to Court decree, the property was sold by the sheriff at a tax sale conducted on June 2, 1986. The property was purchased by appellant and the deed, dated October 6, 1986, recorded in the Philadelphia County Department of Records. Appellee thereafter filed, on October 6, 1987, a petition seeking the redemption of an undivided one-third interest in the premises upon payment of a sum equal to one-third of the total of the amount bid at sale plus all other sums specified by the redemption statute.

Section 7293 of the General Municipal Law of May 16, 1923, P.L. 207, § 32, as amended 53 P.S. § 7293, provides, inter alia:

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgment of the sheriffs deed therefore, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriffs deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments. If both owner and creditor desire to redeem, the owner shall have the right so to do only in case he pays the creditor’s claim in full. If more than one creditor desires to redeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem from one higher in lien who has already redeemed, and the owner may redeem from him; and so on throughout, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien, unless his claim is paid; but in each case the right must be exercised within the year.
(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute, and upon payment being made or tendered, shall enforce it by attachment.

53 P.S. § 7293(a), (b) (emphasis supplied).

All parties agree that appellee, as a fractional owner of the property, had an absolute right to redeem the real estate. Appellee, however, argues that he could properly redeem his one-third undivided interest in the property by payment of a sum equal to one-third of the total of the amount of the bid plus the sums specified by the redemption statute. Appellant contends, of course, that the property may only be redeemed in full by the payment of the entire amount of the price paid to the sheriff plus the further sums specified by the statute.

While the opinion of the eminent hearing judge reveals a careful and logical analysis, the applicable statute expressly provides that redemption may be accomplished only upon “the payment of the amount bid at [the sheriffs] sale ____” 53 P.S. § 7293(a). The statute, therefore, provides for redemption only upon payment of the full sum paid by the successful bidder, the appellant in the instant case.

Appellee argues that Section 7109 of the Act, 58 P.S. § 7109, which requires a municipality, proceeding upon a claim for taxes, to release the interest of a co-owner from the tax claim upon payment by the co-owner of the proportionate share of the taxes, interest and costs, authorizes, by implication, a partial redemption of realty sold at a tax sale. We find this argument unpersuasive. First, the right of a partial owner of real estate to secure release from a tax claim by a municipality upon the payment of a proportionate share of the tax claim is a presale right which is terminated by the tax sale of the property. Once the property has been sold, the purchaser has a vital interest which the law is obliged to observe, and the redemption statute, and not the Act, controls the procedure by which a pre-sale owner may reacquire ownership. Second, the declaration of the legislature that “payment of the amount bid” was a condition of redemption after the sale, while a proportionate payment would secure a release of the lien against a co-owner prior to the sale, underscores the quite deliberate intention of the legislature to require payment in full, even by a co-owner, prior to redemption.

The City urges us to consider the adverse consequences to tax sale procedures which would result were we to hold that a co-owner may redeem a property by payments of only a portion of the amount specified by the statute. We need not rely upon this argument since the express terms of the statute require payment of the full amount of the bid in order to redeem property sold at a tax sale. We, therefore, reverse the order which granted the petition of appellee for redemption of the property.

ORDER REVERSED. CASE REMANDED. JURISDICTION RELINQUISHED.


author: MONTGOMERY, Judge:

text:
    551 A.2d 1096
    Deborah CITSAY, Appellee, v. Harry REICH, M.D., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1988.
    Filed Dec. 27, 1988.

      David W. Saba, Wilkes-Barre, for appellant.
    Joseph F. Sklarosky, Wilkes-Barre, for appellee.
    Before TAMILIA, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Defendant-Appellant, Harry Reich, M.D., has filed this appeal from a trial court Order denying his Motion for Summary Judgment. The Appellant’s Motion was based upon the claim that the Plaintiff-Appellee, Deborah Citsay, instituted the instant medical malpractice action beyond the applicable two year statute of limitations. See the Act of July 9,1976, P.L. 586, No. 142, § 2, as amended by the Act of December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S.A. § 5524(2). The trial court certified its Order denying summary judgment as one involving a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the Order would materially advance the ultimate termination of the case. See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10(2), 42 Pa.C.S.A. § 702. Thereafter, our Court granted the Petition of the Appellant for permission to file an interlocutory appeal.

At the outset, it is appropriate to recognize the legal standards which govern our analysis in this matter. Under Pa.R.C.P. 1035, summary judgment may properly be granted only “... 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 judgment as a matter of law.” In the consideration of a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, and the court is not to decide issues of fact but merely to determine whether any such issues exist, and to resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1981). A party moving for summary judgment has the burden of proof. Barber v. Harleysville Mutual Insurance Co., 304 Pa.Super. 355, 450 A.2d 718 (1982).

This appeal brings before our Court an interpretation of the “discovery rule”. That rule, a creation of case law, has been applied in determining the appropriate limitations period in malpractice actions, since it was enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). It essentially dictates that when the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the period prescribed in the limitations statute, the limitation period will not begin to run until the discovery of the injury is reasonably possible. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). Stated another way, until one discovers, or through reasonable diligence should have discovered the alleged misdiagnosis or improper procedure employed by the physician, he or she does not have reason to know of the injury, and the running of the statute of limitations with respect to the personal injury cause of action will be delayed until the time of discovery, or the time when discovery became reasonably possible. Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978). Obviously, the discovery rule is grounded upon considerations of fairness and is designed to assist an injured plaintiff. Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981).

Our courts have also analyzed and explained the kind of knowledge a plaintiff must have to trigger the “discovery” which starts the limitations period clock. In Anthony v. Koppers Company, Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), our Court adopted guidelines that provide that the statute of limitations commences in a medical malpractice case when the plaintiff has knowledge, or through the exercise of reasonable diligence should have had knowledge, of: (1) his or her injury; (2) the operative cause of his or her injury; and (3) the causative relationship between his or her injury and the operative conduct. This formula has often been applied in situations such as that presented by the instant appeal. See, for instance, DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295 (1983) and Petri v. Smith, supra.

Other aspects of the rule deserve special note because of the particular issues presented in this case. First, it is clear that a plaintiffs knowledge of the causative relationship between his or her injury and the operative conduct, the third phase of the knowledge inquiry, does not mean that the plaintiff has to be aware that negligence in treatment has occurred and legal rights or a cause of action have vested. This point was mentioned in dicta in Anthony v. Koppers Company, Inc., supra, and was specifically addressed as an issue and resolved in DeMartino v. Albert Einstein Medical Center, Northern Division, supra. Second, we note that while mere mistake, misunderstanding or lack of knowledge do not toll the running of the limitations period, fraud, deception or concealment of relevant facts regarding a medical problem by a defendant physician, whether intentional or unintentional, which misleads an injured party, will toll the statute or estop the defendant from invoking the limitations defense. DeMartino v. Albert Einstein Medical Center, Northern Division, supra; Acker v. Palena, supra. However, the burden of proving the existence of such fraud or concealment is on the party asserting it, and such proof must be by clear, precise and convincing evidence. Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964). A malpractice plaintiff must be expected to exercise reasonable diligence and common sense, and a medical provider’s mere reluctance to discuss a problem has been held not to constitute either fraud or concealment, such as would toll the running of the limitations period. See DeMartino v. Albert Einstein Medical Center, Northern Division, supra; Cf. Armacost v. Winters, 258 Pa.Super. 424, 392 A.2d 866 (1978).

Finally, we recognize that in most situations the question of the application of a statute of limitations defense, especially where a question of due diligence in discovery is raised, is a factual determination for the jury. Taylor v. Tukanowicz, supra. However, in an appropriate case the litigation of a limitation issue, independent of the merits of the plaintiff’s claim, can be accomplished by invoking the summary judgment procedure. Mangino v. Steel Contracting Company, 427 Pa. 533, 235 A.2d 151 (1967).

With all of these concepts in mind, we shall review the pertinent facts presented in this case relating to the limitations issue. The record shows that toward the end of September, 1981, the Plaintiff visited the Defendant, complaining of irregular vaginal bleeding and abdominal pressure. On September 30, 1981, the Plaintiff underwent a procedure known as a diagnostic laparscopy, which involved the insertion of a scope, through a relatively small incision, which permitted a visualization of the pelvic organs. This procedure resulted in a determination that the Plaintiff had a fibroid tumor in her uterus.

On March 8,1982, the Plaintiff was admitted to the NPW Medical Center, in Wilkes-Barre, Pennsylvania, under the care of the Defendant, for exploratory abdominal surgery, known as a myomectomy. A large fibroid mass was removed from the Plaintiffs uterus during the course of the surgery. Thereafter, on March 13, 1982, the Plaintiff was discharged from the NPW Medical Center.

The Plaintiff related that she felt weak while she was at the hospital. When she was discharged, she also experienced severe pains in the bladder area, together with feelings of pressure and a burning sensation. Therefore, during the early morning hours of March 14, 1982, she returned to the emergency room of NPW Hospital. While there, she noted she was passing blood with her urine. During this second visit to the hospital, the Plaintiff apparently had a catheter inserted.

Dr. Reich was out of town and unavailable when the Plaintiff returned to the hospital. She was visited by one of his colleagues in his medical practice, Dr. Bhatt. However, she also consulted with a urologist, Dr. Stuccio. Dr. Stuccio prescribed some medications, and performed certain tests, including one that involved the use of a scope which allowed the visualization into the Plaintiffs urinary tract. After the tests, Dr. Stuccio told the Plaintiff that there was a hole in her bladder. Further, the Plaintiff admitted in her deposition that Dr. Stuccio told her, at that time, that the perforation in her bladder may have resulted from the surgery Dr. Reich had performed a few days earlier. Dr. Stuccio recommended her use of a catheter for a couple of weeks, as part of the treatment expected to lead to recovery.

The Plaintiff was discharged the second time from NPW Medical Center on March 22, 1982, and thereafter made regular postoperative visits to Dr. Reich, the Defendant. She continued to experience sensitivity in the area of the surgery, and had a pressure or pain feeling when she urinated. During a deposition in this case, the Plaintiff was asked repeatedly whether she ever discussed with the Defendant, Dr. Reich, what Dr. Stuccio had said to her about the perforation in her bladder having arisen from Dr. Reich’s surgery. She could only recall that she had mentioned it to him, but had no recollection at all of what she actually said to the Defendant about it. She had no recall of his response on that point, but only remembered that “he didn’t say that much about it”.

In 1983 or 1984, the Plaintiff sought care from another urologist, Dr. Kabler, at Geisinger Medical Center. She said she did so because she was “looking for a better doctor”, who would give her better answers, or find out what actually was wrong with her. She did not think she was getting a satisfactory explanation of her continuing problems from either Dr. Reich or Dr. Stuccio. She was having strange feelings in her bladder, a different type of pain, and did not think that she was getting the right treatment. She related that Dr. Kabler determined that there was blood in her urine, and said that the pressure or urgency of having to urinate “could be the results of what happened.” She said that he told her that the hole in the bladder could have weakened the walls of the bladder, and that was probably why she was experiencing sensitivity and other problems in her bladder. The Plaintiff did not testify that she discussed with Dr. Kabler whether or not the hole in her bladder resulted from the surgery which had been performed by Dr. Reich.

The Plaintiff commenced this action by filing a Praecipe for Writ of Summons on January 16, 1986. In her subsequent Complaint, the Plaintiff asserted the following: “14. That on or about January 28, 1984, Plaintiff first learned that Dr. Reich’s negligence was the cause of the hole in her bladder.” No other allegations are advanced in the Complaint on that point.

We now may address the issues presented, applying those aspects of the discovery rule enunciated earlier in this Opinion, pursuant to the guidelines applicable in the consideration of a motion for summary judgment. The first question presented is when the Plaintiff either had knowledge, or through the exercise of reasonable diligence should have had knowledge, of her injury, the operative cause of her injury, and the causative relationship between her injury and the conduct of the Defendant with regard to her treatment. It is clear that the Plaintiff was aware during her second hospitalization at NPW Medical Center, under the care of Dr. Stuccio, between March 14, 1982 and March 22, 1982, that she had an injury, comprised of a perforation or hole in her bladder, which caused her sensations of pain, sensitivity, and pressure to urinate. Dr. Stuccio advised her of the perforation during that second hospitalization, and further advised her that it may have arisen in the then-recent surgery which had been performed by Dr. Reich. This clearly made known to the Plaintiff the operative cause of her injury. Finally, such facts also made the Plaintiff aware of the third facet of the discovery rule’s knowledge factor, the causative relationship between her injury and the operative conduct, in that she was aware that the Defendant had performed the surgery which purportedly resulted in her problem. In short, prior to March 22, 1982, the Plaintiff was aware that she was having problems, was aware that Dr. Stuccio attributed those problems to a hole in her bladder, and was apprised of the information that the bladder perforation had allegedly arisen from Dr. Reich’s surgical procedure. However, she did not institute this litigation until almost four years later, in January, 1986.

On appeal, the Plaintiff-Appellee urges that the two-year limitations period should be considered to have started not from March, 1982, when such matters were known to the Plaintiff, but rather from a later date when she purportedly knew that the conduct of Dr. Reich was negligent. As discussed earlier in this Opinion, such an argument has been specifically rejected by our Court in DeMartino v. Albert Einstein Medical Center, Northern Division, supra. It is clear that awareness of potential legal negligence or the right of a cause of action is not required to satisfy the third element of knowledge under the discovery rule. Accordingly, we reject the contention of the Appellee on that point.

The Appellee also argues that the running of the statute of limitations should be tolled as a result of alleged conduct by Dr. Reich in actively concealing from her any knowledge that his alleged negligence in the surgery resulted in the hole in the bladder which caused her health problems. In support of that assertion, the Plaintiff points out Dr. Reich’s deposition testimony, in which he denied that his surgery had caused any perforation in the bladder. That deposition, however, was taken after the instant action was instituted. There is no evidence whatsoever in the record to indicate that Dr. Reich denied to the Plaintiff, in March, 1982, or at any time thereafter, that the hole in her bladder arose during his surgery, or as a result of any action or inaction on his part in connection with that procedure. The only evidence of record on that issue is the Plaintiff’s own deposition testimony. In the course of that discovery proceeding, she testified she recalled mentioning to Dr. Reich that Dr. Stuccio had told her that the perforation in her bladder could have been the result of surgery. She recalled no response, if any, from Dr. Reich on that issue. There is not the slightest inference, from any evidence in the record, that Dr. Reich either denied to the Plaintiff that his surgical procedures had caused the problem, or that he attributed the perforation to other causes or problems. It is evident that the Plaintiff has not come close to satisfying her legal burden to prove the existence of concealment or other fraud on the part of the Defendant by clear, precise and convincing evidence. Accordingly, the Plaintiff’s testimony that Dr. Reich gave her no real answer did not establish fraud or its equivalent, that would toll the running of the limitations period. See DeMartino v. Albert Einstein Medical Center, Northern Division, supra; Armacost v. Winters, supra.

The Plaintiff-Appellee delayed the filing of this action for more than two years beyond the date when she gained sufficient knowledge to trigger the beginning of the limitations period under the discovery rule. As a result of her failure to exercise reasonable diligence in pursuing her claim, we conclude that it was error for the trial court to deny the Appellant's Motion for Summary Judgment, which was based on the applicable statute of limitations.

The Order of the trial court is reversed, and the Plaintiff’s Complaint is hereby dismissed.


author: POPOVICH, Judge:

text:
    551 A.2d 1101
    Bernadette POTTER a/k/a Bernadette Brophy, Appellant, v. TEMPLE UNIVERSITY HOSPITAL, Charles R. Shuman, M.D., Willis P. Maier, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1988.
    Filed Dec. 22, 1988.

      Richard Morelli, Norristown, for appellant.
    Frederick J. Stellato, Philadelphia, for appellees.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of non pros entered by the Court of Common Pleas of Philadelphia County against the appellant, Bernadette Potter, a/k/a Bernadette Brophy. We reverse.

The facts of record indicate that suit was commenced in this action by summons in February of 1985. On the face of the praecipe seeking issuance of the summons, as well as the summons itself, appeared the language: “Jury Trial Demanded”. No action was taken to file a complaint until October 6, 1987. In the interim, the case was listed in the Legal Intelligencer as a non-jury case. However, when the case was called for trial on or about March 24, 1987, the appellant’s counsel failed to appear and a judgment of non pros was entered on the court’s own motion. See Pa.R. Civ.P. 218.

On April 7, 1987, the appellant’s counsel filed a petition seeking to have the case reinstated on the civil trial list. Counsel averred therein that “his staff” had failed to notify him of the case’s listing for trial, and this caused him, “inadvertently[,] ... [not] to respond to the Call of the List.” (Paragraph 3) It was further asserted that the case was on the non-jury list because “a complaint had not been filed since the action had been commenced to toll the Statute of Limitations pending the discovery ... process”. (Paragraph 7)

The petition was granted, and the court noted on the face of the order that the matter was to be “placed on the CIVIL TRIAL LIST”. The petition was “uncontested”, since the defendants (Temple University Hospital, Charles R. Shuman, M.D. and Willis P. Maier, M.D.) had no attorney enter an appearance on their behalf until September 18, 1987.

On October 9, 1987, a complaint was filed by the appellant. Thereafter, by order dated October 14, 1987, a judgment of non pros was entered for the appellant’s counsel’s failure to appear at the call of the list for assignment to trial. On October 20th, a petition to have the case reinstated on the civil trial list was submitted by counsel for the appellant. He alleged that the “slowly arriving mail to his law office as a result of a three (3) day holiday weekend that extended to Monday, October 12, 1987,” precluded the timely receipt of the Legal Intelligencer, and this impaired his staff’s cognizance of the fact that he was scheduled to appear for trial on October 14, 1987. (Paragraph 2) As a result, according to counsel for the appellant, he was “not notified by his staff and inadvertently failed to respond to the Call Of The List”. (Paragraph 3)

Moreover, counsel for the appellant claimed that counsel for the defendants had an obligation to inform him of the October 14, 1987, call of the trial list. (Paragraph 6) Lastly, counsel contended that the case was “mistakenly listed on the non-jury trial list” for October 14, 1987, as compared to the jury trial list called for by the “reinstatement” order of the court dated May 12, 1987.

Counsel for the defendants filed a response to the appellant’s reinstatement petition. He averred, in relevant part, that the case was listed in the Legal Intelligencer on the non-jury trial list “on each of those business days between October 5,1987 and October 14, 1987. Moreover, the listing in The Legal Intelligencer, while naming counsel for [the appellant] by name, did not note defense counsel’s name despite the fact that an appearance had been entered on September 15, 1987. Therefore, his name having not appeared with this case on the non-jury trial list, counsel for answering defendants was not aware that this case was on the non-jury trial list.” (Paragraph 2)

Also, defendants’ counsel urged that: “If in fact this matter was mistakenly listed on October 14, 1987 on the non-jury trial list, this is a mistake which plaintiff’s counsel was well aware of, as the case had appeared previously on the non-jury trial list and judgment for non pros had been entered once before for plaintiffs failure to appear at the call of the non-jury trial list.” (Paragraph 7)

Even if the mail were slow prior to the October 12, 1987 Columbus Day, so as to affect the appellant’s counsel’s receipt of his copy of the Legal Intelligencer, counsel for the defendants points out that, because this case appeared on the non-jury trial list in the Legal Intelligencer on October 5, 6, 7, 8, 9, 13 and 14 of 1987, the appellant’s counsel “should have reviewed five copies of The Legal Intelligencer listing this case on the non-jury trial list prior to October 12, 1987, Columbus Day.” {See Memorandum of Law in Support of Defendants’ Response To Plaintiff’s Petition To Reinstate On Trial List at page 6)

Judgment of non pros was entered by the court below. Even with an amended petition being filed by the appellant, in which the improper listing of the case in the “non-jury trial list” was repeated, the initial order was affirmed. With the reduction of the order to judgment, a timely appeal to this Court was perfected.

The two issues raised for our consideration, in essence, challenge the entry of the judgment of non pros as an “improvident” act by the court below.

In this jurisdiction, it is well-established that a petition to open a judgment of non pros is addressed to the court’s equitable power, and the exercise of this power will not be disturbed absent an abuse of discretion. Hutchison v. Hutchison, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Corcoran v. Florentino, 277 Pa.Super. 256, 419 A.2d 759, 761 (1980).

As for whether counsel for the appellant has proffered a “reasonable” excuse for his failure to appear at the call of the trial list on October 14, 1987, counsel for the defendants directs us to Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986).

In Toczylowski, our Court reinstated a judgment of non pros vacated by the Common Pleas Court. We did so, inter alia, because of the plaintiff’s (Casimir Toczylowski’s) counsel’s failure to appear at the Philadelphia call of the trial list.

The appellee’s original complaint was filed in January of 1982 as a defamation action slated for a jury trial. The case lay dormant until the Court Administrator for Philadelphia mailed a letter (dated July 7,1985) informing appellee’s counsel that it was “contemplated” that the case would “be assigned for trial on the individual judge program in the very near future.” However, prior to the case being assigned to an individual judge, it was included under the “New Listings” heading as a “major jury” case. This listing appeared with regularity, between October 4 and October 16, 1985, in the Legal Intelligencer, Despite the listings of the case on the “major jury” list, appellee’s counsel failed to appear at the call of the list on October 16th, and, on motion of counsel for the appellant, judgment of non pros was entered.

In the appellee’s petition to vacate the entry of non pros, counsel included an affidavit indicating that, upon receipt of the Court Administrator’s July 7, 1985 letter, he began “to monitor the individual judge calendars, as printed in the Legal Intelligencer, exclusively, and never saw the major jury listing[.]” Id., 359 Pa.Superior Ct. at 576, 519 A.2d at 502. The petition was granted. On appeal, however, this Court vacated the order removing the judgment of non pros and reinstated it.

This Court, in vacating the lower court’s order, stated its rationale, in pertinent part, as follows:

The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts. * H * [Cjounsel [was not excused] from her duty to be knowledgeable concerning other portions of the Intelligencer____ As such, ... counsel [for the appellee] was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.
Her duty to have so performed is further buttressed by Philadelphia Local Rule of Court 200, which governs the assignment of eases for trial[.]
... [R]ule [200] imposes upon a Philadelphia practitioner a need for watchfulness with respect to the civil trial listings in the Intelligencer, as opposed to the type of limited scrutiny which was applied by appellee’s ... counsel.
In light of the foregoing, it is inconceivable to this Court that ... counsel’s excuse for non-appearance, i.e., the letter, can be deemed reasonable. A litigator is under an obligation to keep abreast of publications to the bar, such as the Intelligencer, as well as local rules of court.

Id,., 359 Pa.Superior Ct. at 580, 519 A.2d at 504 (Citations omitted).

Counsel for the defendants argues that counsel for the appellant had a duty, as made reference to in Toczylowski, “to be knowledgeable concerning other portions of the Intelligencer to monitor all of the lists (be they jury or non-jury). Especially is this so, urges counsel for the defendants, given the erroneous listing of the case on the “non-jury” trial list for March 24 of 1987.

Moreover, counsel for the defendants continues, Philadelphia Local Rule of Court 200, reproduced in Toczylowski, imposes upon a Philadelphia practitioner a need to be cognizant of the civil trial listings in the Intelligencer.

Our review of the case law on this subject reveals that Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988), is controlling in the disposition to be made here.

In Nivens, a judgment of non pros was entered on the court’s own motion pursuant to Rule 218, this was so despite the fact that neither party was present at the call of the list.

A motion to vacate the judgment of non pros was granted the plaintiffs. The lower court did so on the strength of Philadelphia Local Rule of Court No. 200, which is printed as a “Notice to the Bar” in the Legal Intelligencer since January 2, 1987, and provides, in relevant part, that a party appearing at the call of the trial list must have given notice to the opposing party for the case to proceed in the absence of the opposing party.

Because the lower court found that the absence of the plaintiffs counsel at the call of the list had been reasonably excused by his failure to receive prior notice from the defendant’s counsel, the motion seeking a vacation of the judgment of non pros was granted.

On appeal, this Court found it unnecessary to address the merits of the lower court’s vacation of the judgment of non pros on the ground of non-compliance with Philadelphia Local Rule of Court No. 200. Also, we found Toczylowski to be distinguishable and not controlling the outcome of the case. We stated our rationale thusly:

In Toczylowski, counsel for appellee had not appeared at the call of the list, due to her failure to monitor the major jury trial listings in the Intelligencer. Appellant’s counsel had been present, however, and had requested the entry of non pros. Toczylowski, supra, 359 Pa.Superior Ct. at 576, 519 A.2d at p. 502.
In the matter sub judice, by contrast, appellant’s counsel did not request the non pros, but rather, due to his own failure to monitor the daily trial list, also missed the listing of this case, and failed to appear when the case was called for trial. Non pros was entered upon the court’s own motion, and not as the result of diligent representation by appellant’s counsel. Hence, we are confronted with a situation wherein appellant is insisting that Toczylowski be strictly enforced against its opponent, while ignoring the negligent non-compliance of its own counsel with that decision’s requirements.
A petition to vacate a judgment of non pros is addressed to a trial court’s equitable powers; where the trial court has vacated non pros, an appellate court will not reverse unless a manifest abuse of discretion, or clear error of law, in its consideration of the three criteria for vacation, has occurred. See Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986); see also Buxbaum v. Pequero, 335 Pa.Super. 289, 484 A.2d 137, 139 (1984). Moreover, we may affirm the trial court if its decision was correct on any ground. Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840, 843 (1984). We now hold, without relying upon the reason given by the trial court, i.e. the failure of appellant’s counsel to follow the new Philadelphia notice policy, that, where a party acts promptly to vacate a non pros which has been entered on the court’s own motion, due to the failure of both sides to appear, the trial court may, as an equitable matter, hold that the moving party’s failure to strictly conform to the Toczylowski requirements for diligent representation, in the face of an innocent oversight, is reasonably excused where the opposing party has displayed a similar lack of due diligence by failing to monitor the list and appear at the same call. Where neither party is prepared to go forward, as here, neither should be permitted to profit from an innocent, albeit negligent, comedy of errors. It has been established law in this Commonwealth that an innocent oversight by counsel may justify the vacation of non pros. See Buxbaum, supra, 484 A.2d at p. 140.

373 Pa.Super. at 382, 541 A.2d at 367-68 (Emphasis in original; footnotes omitted).

Instantly, as in Nivens, counsel for both parties failed to appear at the call of the trial list on October 14, 1987. It is the position of counsel for the appellant that publication in the “non-jury” listings of the Intelligencer, as compared to the “jury” listings as called for by the lower court’s “reinstatement” order, is a basis for excusing his failure to appear. On the other hand, counsel for the defendants contends that the absence of his name, as attorney for the defendants, in the case listing should excuse his non-appearance. As stated by Nivens, which we find applicable at bar, where both parties have displayed a lack of due diligence by failing to monitor the list and be present at the same call, “neither party is prepared to go forward, [and, thus,] ... neither should be permitted to profit from an innocent, albeit negligent, comedy of errors.” 373 Pa. Super, at 382, 541 A.2d at 367.

Just as the attorney for the defendants contends that counsel for the appellant should have monitored the “non-jury” trial listings, no less is counsel for the defendants relieved of his obligation to do the same and review the Intelligencer. Since the case caption (“Potter vs. Shuman”) and the appellant’s attorney were listed under the “non-jury” heading, both attorneys were negligent in not detecting the placement of the case.

As for the other two criteria having to be satisfied before a judgment of non pros may be opened, we find that the appellant filed timely her petition to reinstate the case (six days after non pros was entered on motion of the court below) and she has stated in her complaint (for medical malpractice) allegations of fact that facially present a cause of action.

Therefore, we find that the appellant has presented sufficient grounds to support the vacation of the judgment of non pros.

JUDGMENT REVERSED. Jurisdiction is relinquished.

      . The issue regarding the propriety of the "notice" requirement to opposing counsel on a case-listing, as called for by Philadelphia Local Rule of Court No. 200, has been briefed by both parties. Although from the discussion supra it is evident that the Rule 200 “notice" matter is not pivotal to a resolution of the case at bar, we find a discussion of the same would resolve any doubt harbored by the bench and bar of Philadelphia as to its continued vitality and legitimacy.
      To start, we would observe that the Judicial Code, at 42 Pa.C.S. § 323, affords every court the power to prescribe rules “as the interest of justice or the business of the court may require”; provided, of course, they are consistent with and shall not conflict with the Pennsylvania Rules of Civil Procedure. See Byard F. Brogan v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983).
      Our review of the Civil Procedure Rules nowhere precludes the type of "notice" requirement insisted by Philadelphia Local Rule of Court No. 200 as a condition precedent to the grant of a judgment of non pros for not appearing at the call of the list. We believe this "notice” requirement to be laudatory in that it assures that the "dispute-resolution" process does not reduce itself to a mere procedural menagerie, that counsel’s absence should not be without justification following "notification" from opposing counsel and, hopefully, appeals may be avoided and the case can be resolved without delay.
      Accordingly, the "notice” requirement of Rule 200 is facially and procedurally not at odds with any principle of law or the Pennsylvania Rules of Civil Procedure. See Crookes v. Crookes, 346 Pa.Super. 315, 499 A.2d 626 (1985).


author: HOFFMAN, Judge:

text:
    551 A.2d 1106
    Alexander MEERZON and Lilia Groysman, Appellants, v. ERIE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 21, 1988.
    Filed Dec. 28, 1988.

      Paul R. Sacks, Philadelphia, for appellants.
    Joseph M. Oberlies, Philadelphia, for appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below confirming an arbitration award. Appellants contend that the lower court erred in refusing to set aside the award because (1) the court employed the wrong standard of review; and (2) considered under the proper standard of review, the arbitration panel erred in concluding that appellants had failed to prove that the vehicle that struck their car was uninsured. For the reasons that follow, we agree and, accordingly, we reverse the order below, we vacate the arbitration award, and we remand the case for proceedings consistent with this Opinion.

On December 12, 1984, a car owned and driven by appellant Alexander Meerzon was involved in an automobile accident. As a result of the collision, both Meerzon and a passenger in his car, appellant Lilia Groysman, were injured. In February, 1986, appellants instituted this action by filing a petition to Compel Uninsured Motorist Arbitration against Meerzon A own insurer, appellee, Erie Insurance Company. On November 6, 1986, an arbitration hearing was held on the uninsured motorist claim. Following that hearing, the parties submitted supplemental memoranda. On March 25, 1987, the arbitrators, with one arbitrator dissenting, recommended that judgment be entered in favor of appellee. On June 2, 1987, the panel reaffirmed this decision. On July 2, 1987, appellants filed a petition in the Court of Common Pleas seeking to set aside the arbitration award. The lower court denied the petition and this timely appeal followed.

I. STANDARD OF REVIEW

Appellants first contend that the lower court erred because it reviewed the arbitration decision pursuant to principles of common law arbitration rather than statutory arbitration. Preliminarily, we note that “[i]t is always open to contracting parties to provide for statutory, rather than common law, arbitration.” Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 116 n. 6, 299 A.2d 585, 589 n. 6 (1973). An important difference between the two types of arbitration is that statutory arbitration is subject to much broader judicial review than is common law arbitration. Cf. Obdyke v. Harleysville Mutual Ins. Co., 299 Pa.Super. 298, 301, 445 A.2d 763, 765 (1982) (construing Pennsylvania Arbitration Act of 1927).

Here, the car accident in which appellants were injured occurred on December 12, 1984. The insurance policy issued by appellee was in effect from September 22, 1984 until September 22, 1985. See R.R. at 39a. The policy provided that if either party demanded arbitration to resolve a dispute regarding uninsured motorist coverage, the arbitration “shall be conducted in accordance with the Pennsylvania Arbitration Act of 1927.” See Insurance Agreement at 9, R.R. at 118a. In addition, the parties stipulated that the arbitration proceeding was “a statutory arbitration under Act 27.” N.T. November 6, 1986 at 35. Although the Act of 1927 was repealed and replaced by the Act of 1980 (codified at 42 Pa.C.S.A. §§ 7301-7362), the current statute contains provisions that govern agreements to arbitrate under the prior Act. Thus, section 501(b) of the 1980 Act provides, in relevant part, that,

(b) The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
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(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 ..., relating to statutory arbitration.

Act of 1980, Oct. 5, P.L. 693, No. 142 (codified as the Historical Note to 42 Pa.C.S.A. § 7302(d)(2)) (emphasis added). Section 7302(d)(2), in turn, provides the following standard of review:

(2) [A] court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

Id. See also Ragin v. Royal Globe Ins. Co., 315 Pa.Super. 179, 184, 461 A.2d 856, 858 (1983) (under § 7302, arbitration award may be vacated when award was due to egregious mistake of law on part of arbitrators); id., 315 Pa.Superior Ct. at 184-85, 461 A.2d at 859 (“In order to establish legal order within the arbitration process, courts must refuse to sanction monetary awards which are contrary to law, inequitable, unjust, or the apparent result of prejudice on the part of the arbitrators.”). In light of the agreement between the parties and the provisions of the 1980 Act quoted above, we hold that the “contrary to law” scope of review should have been applied by the lower court.

II. SUFFICIENCY OF EVIDENCE REGARDING UNINSUREDNESS

We now turn to the merits of appellants’ underlying contention. See Selected Risks Ins. Co. v. Thompson, 363 Pa.Super. 34, 37, 525 A.2d 411, 412 (1987), allocatur granted, 516 Pa. 614, 531 A.2d 781 (1987). Appellants contend that the arbitration panel majority erred in concluding that appellants had failed to prove the uninsuredness of the vehicle that struck them. In recommending that judgment be entered in favor of appellee, the neutral member of the arbitration panel, writing for the panel majority, reasoned as follows:

The record and supplemental data are without any evidence to establish that the vehicle or operator of the 1976 Ford which struck [appellants’] vehicle was uninsured. As a result, I am left with no choice but to recommend the entry of judgment in favor of Erie Insurance Company and against [appellants] in this Arbitration.
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I was most reluctant to reach this result because I do believe that the statute strongly favors providing insurance where individuals are hurt through no fault of their own by an uninsured vehicle. However, the statute and policy set forth a condition precedent, i.e. proof that the vehicle was uninsured, which is completely absent, here.

See Supp.R.R. at 16b. The resolution of appellants’ contention turns on the construction to be given the term “uninsured motor vehicles”, or more precisely the word “uninsured”, as that word is used in Pennsylvania’s Uninsured Motorist Act (“Act”), 40 P.S. § 2000.

The Act requires that all automobile insurers offer policies that provide for coverage for bodily injury or death resulting from the actions of “owners or operators of uninsured motor vehicles.” Id. § 2000(a). The Act neither defines the term “uninsured”, nor does it provide any guidance regarding the type or quality of proof necessary to show that a vehicle is uninsured. It, therefore, is this Court’s task to define the parameters of the term, see Davis v. Government Employees Ins. Co., 500 Pa. 84, 88 n. 5, 454 A.2d 973, 975 n. 5 (1982); id., 500 Pa. at 95, 454 A.2d at 978 (Larsen, J., dissenting), and we must do so in a manner “which harmonizes with the subject matter and its general purpose and object.” Busy Beaver Bldg. Centers v. Tueche, 295 Pa.Super. 504, 512, 442 A.2d 252, 256 (1981). See also Davis v. Government Employees Ins. Co., supra 500 Pa. at 95, 454 A.2d at 978 (Larsen, J., dissenting); Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 468, 445 A.2d 1222, 1224 (1982) (when statute is unclear, court is bound to consider legislative purpose). Accord 1 Pa.C.S.A. § 1921(a) (“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.”).

The courts of this Commonwealth have consistently emphasized the remedial purpose behind the Act. Thus, in Boyle v. State Farm Mutual Automobile Insurance Co., 310 Pa.Super. 10, 456 A.2d 156 (1983), allocatur denied, we noted that “[t]he purpose of the uninsured motorist law has been frequently and consistently interpreted by our courts as providing protection to innocent victims of uninsured drivers.” Id., 310 Pa.Superior Ct. at 21, 456 A.2d at 162. See also Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). The object to be accomplished by this coverage “is to ‘afford financial recompense to persons who receive injuries or the dependents of those who are killed, solely through the negligence of motorists, who, because they are uninsured and not financially responsible, cannot be made to satisfy a judgment.’ ” Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 619, 300 A.2d 61, 64 (1973) (citation omitted). See also Harleysville Mut. Cos. Co. v. Blumling, supra 429 Pa. at 395, 241 A.2d at 115 (uninsured motorist statute is “designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injury through the negligent use of those highways by others.”) (citation omitted); Webb v. United Serv. Assoc. Appeal, 227 Pa.Super. 508, 323 A.2d 737 (1974), allocatur denied. Moreover, the courts have repeatedly emphasized that, in order to give effect to the broad remedial purpose of the uninsured motorist law, the Act must be construed liberally. Johnson v. Concord Mut. Ins. Co., supra; Harleysville Mut. Cas. Co. v. Blumling, supra; Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967). See also Boyle v. State Farm Mut. Auto Ins. Co., supra 310 Pa.Super. at 22, 456 A.2d at 162 (“[t]he 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.”). Accord 1 Pa.C.S.A. § 1928(c).

The facts are not in dispute. The evidence presented at the arbitration hearing and in supplemental memoranda established that, after the accident, appellant Meerzon spoke with the driver of the other vehicle, and exchanged ownership and insurance information. As a result of this exchange, appellants learned the other driver's name and his telephone number, the year, make, and license plate number of his car, the name of his insurance company, and his insurance policy number. Appellants’ counsel attempted to verify the information provided by the other driver, so that appellants could institute an action against the owner/driver of the other vehicle and his insurance company. Appellants thereafter discovered, however, that the driver of the car that struck them had misrepresented his name, his telephone number, his insurance company, his policy number, and his license plate number. In short, all of the information provided appellants at the scene of the accident was falsified. As a result of these misrepresentations, appellants, despite their best efforts both at the scene of the accident and afterwards, were unable to determine the identity of the driver or owner of the car that struck them.

Considering these facts in light of the remedial purpose behind the Act, we are convinced that the arbitration panel erred in concluding, as a matter of law, that appellants had failed to produce sufficient evidence to warrant a finding that the other vehicle was “uninsured.” In many instances, proof of uninsuredness may be uncontested: for example, the tortfeasor may admit to being uninsured, or vehicle registration and insurance records may conclusively establish the fact of uninsuredness. Here, in the arbitrators’ view, the difficulty with appellants’ proof was that they could not demonstrate that the other vehicle was uninsured in such an affirmative manner. We note, however, that there is no legislative requirement that uninsuredness be proven in such a manner; instead, the Act is silent regarding the manner of proof. Accordingly, the letter of the Act does not prevent appellants’ recovery in this case.

We note further that, although appellants could not establish uninsuredness through such admissions or documentary evidence, they did establish that despite their best efforts, and due to misrepresentations made by the other driver, it was not possible to ascertain whether the other vehicle was insured. Thus, the arbitration panel was presented with a situation in which the claimants were innocent victims, injured by an irresponsible driver, who, through his false statements, had rendered himself unidentifiable and hence judgment-proof. When viewed in light of the remedial purpose behind the Act and the presumption in favor of coverage, we see no principled difference between the case at bar and a situation in which the fact of uninsuredness is undisputed: in both instances, the claimant is an innocent victim who has suffered injury at the hands of a financially irresponsible driver. Moreover, in both instances the claimant cannot recover pursuant to an insurance policy held by the tortfeasor, and the claimant’s only hope for financial recompense rests in his or her own insurance policy. We therefore hold, as a matter of law, that appellants produced sufficient evidence to establish that the vehicle that injured them was uninsured. Because the arbitrators’ award was based on their erroneous construction of the term “uninsured”, the award is contrary to law and must be vacated. See 42 Pa.G.S.A. § 7302(d)(2); id. § 7314(a)(l)(iii); Ragin v. Royal Globe Ins. Co., supra.

We find further support for our conclusion in the fact that, in an analogous situation (involving hit and run drivers), the legislature has defined the term “uninsured motor vehicle” to include instances where, as here, it is impossible to determine whether the other car was insured or uninsured. Thus, the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701-1798 (effective October 1, 1984), provides that an “uninsured motor vehicle” may include

An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 80 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.

Id. § 1702 (emphasis supplied). This expansive definition of the term “uninsured” is consistent with the remedial purpose behind all uninsured motorist legislation.

Although appellants do not argue that the car that injured them was a hit and run vehicle, this case is similar to a hit and run situation. The main distinction is that, here, the vehicle has been rendered unidentifiable because of the other driver’s misrepresentations, whereas in the classic hit and run case, the vehicle is “unidentified” because of the other driver’s flight. In both situations, however, it is impossible to determine whether the other vehicle was insured or uninsured. Moreover, each situation involves an innocent claimant, injured by an irresponsible driver who, through his criminal misconduct, has rendered himself judgment-proof. We can find no principled justification for a rule that would allow recovery when a vehicle is unidentified because of the other driver’s criminal flight, but disallow recovery when the vehicle is unidentified because of the other driver’s criminal misrepresentations.

In summary, appellants have shown that, despite their best efforts, they were unable to identify the driver or owner of the vehicle that had injured them. We hold that this evidence was sufficient to establish that the vehicle that had injured appellants was “uninsured” as that term is employed in the Uninsured Motorist Act. Because the arbitrators’ award was based on their erroneous construction of the term “uninsured”, the award is contrary to law and should have been vacated.

For the foregoing reasons, we reverse the order below, we vacate the arbitration award, and we remand the case to the lower court for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction relinquished.

      . It is undisputed that the lower court reviewed appellants’ petition pursuant to common law arbitration principles. In its opinion, the lower court stated the standard of review as follows:
      It is axiomatic that Common Law Arbitration may only be vacated or modified upon a clear showing of fraud, misconduct, or other irregularity which caused an unjust, inequitable or unconscionable award to be entered____
      Lower Court Opinion at 2 (citation omitted) (emphasis supplied).

      . In common law arbitration, an award may not be vacated or modified "unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award." 42 Pa.C.S.A. § 7341. Accord Young v. United States Fid. & Guar. Co., 299 Pa.Super. 237, 239, 445 A.2d 542, 543 (1982) (" ‘a commonlaw arbitration award is not reviewable on the basis of error of law or fact by the arbitrators’ — ”) (citation omitted), appeal dismissed, 500 Pa. 233, 455 A.2d 635 (1983).

      . Section 2000(a) provides in its entirety:
      (a) No motor vehicle liability policy of insurance insuring 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____

        Id. (footnote omitted).

      . We are aware that, in the insurance policy issued by appellee in the instant case, the relevant definition of an uninsured motor vehicle is “a land motor vehicle or trailer of any type ... [t]o which no bodily injury liability bond or policy applies at the time of the accident.” Insurance Agreement at 8 (R.R. at 117a). This definition is substantially similar to both the definition approved and promulgated by the Pennsylvania Insurance Commissioner, see 31 Pa.Code § 63.2 (quoted in White v. Concord Mut. Ins. Co., 296 Pa.Super. 171, 177, 442 A.2d 713, 716 (1982) (en banc), aff’d 500 Pa. 103, 454 A.2d 982 (1982)), and the definition contained in the Motor Vehicle Financial Responsibility Law. See 75 Pa.C.S.A. § 1702. We note, however, that these definitions, like the Uninsured Motorist Act itself, do not address the type or quality of proof necessary to prove uninsuredness. We further note that, even if the Insurance Commissioner and appellee defined the term uninsured in such a way as to narrow the scope of recovery, those definitions could not be valid if they contravened the policies behind the adoption of the Act. See Adelman v. State Farm Mut. Auto. Ins. Co., 255 Pa.Super. 116, 127 & n. 16, 386 A.2d 535, 540 & n. 16 (1978).

      . The issue presented in Davis was "whether a motorist who has the minimum amount of liability insurance required by Pennsylvania's financial responsibility law is nevertheless an ‘uninsured’ motorist within the meaning of the statute whenever he causes an accident in which his coverage insurance is insufficient to indemnify the injured party for his losses.” 500 Pa. at 86, 454 A.2d at 973 (footnote omitted).

      . We are mindful that, in reviewing an award entered pursuant to a statutory arbitration proceeding, “[e]very inference of fact must be drawn in favor of sustaining the award.” Boyle v. State Farm Mut. Auto Ins. Co., 310 Pa.Super. at 15, 456 A.2d at 158. Here, however, appellee did not contest appellants’ factual allegations regarding uninsuredness. Instead, appellee argued that the facts as alleged by appellants were insufficient to establish the uninsuredness of the other vehicle.

      . See N.T. November 6, 1986 at 11-13, 20, (R.R. at 14a-16a, 23a); Exhibit P-3, (R.R. at 42a).

      . See N.T. November 6, 1986, at 13-21, (R.R. at 16a-24a); Exhibits P3-P9 (R.R. at 42a-52a); Plaintiffs Memorandum, November 17, 1986, at 3-4 (Supp.R.R. at 3b-4b).

      . We note that, consistent with our duty to effectuate the remedial purpose behind uninsured motorist legislation, we have liberally construed the "hit and run” provisions of insurance policies. In Binczewski v. Centennial Ins. Co., 354 Pa.Super. 229, 511 A.2d 845 (1986), the driver who struck the claimant’s car stopped to ask if she was hurt, then immediately left the scene. Id., 354 Pa.Superior Ct. at 230, 511 A.2d at 846. Soon after, a police officer arrived at the scene, and was told that a hit and run driver had been involved in the accident. Id., 354 Pa.Superior Ct. at 231-32, 511 A.2d at 846-47. Judge Olszewski, writing for a unanimous panel, held that this evidence was sufficient to establish that the other vehicle was a hit and run vehicle under the uninsured motorist provision of the claimant’s policy. Id. In so holding, Judge Olszewski stated that
      We agree with the lower court that nothing in the insurance policy imposes a duty upon [the claimant] to actively question the driver of the vehicle which struck her "when the driver almost instantaneously drove away and left no information____”

        Id., 354 Pa.Superior Ct. at 232, 511 A.2d at 847 (citation omitted).

      . The insurance policy in the instant case provided for uninsured motorist coverage in the event that damage was caused by a hit and run vehicle. See Insurance Agreement at 8 (R.R. at 117a). The policy, like § 1702, required that the insured "promptly notify the police” in order to qualify for such coverage. Id. at 11 (R.R. at 121a). Appellants presented an argument in the court below based on the hit and run provision of the policy, but they have abandoned that argument on appeal.

      . A second distinction between this case and a classic hit and run situation is that there is no evidence that appellants reported the accident to the police, as is required both under their policy and under the statute. We note, however, that strict adherence to the reporting requirement would be pointless here because appellants had no reason to think that an unidentified vehicle was involved until long after the accident. In such a situation, we may question whether this fact alone would prevent a claimant from recovering under a hit and run theory.

      . Appellants also contend that the arbitration award should be set aside on the ground that they were denied a hearing. See 42 Pa.C.S.A. § 7307(a)(4); id. § 7314. In light of our disposition of this appeal, we need not address this contention.