author: CERCONE, Judge:

text:
    491 A.2d 879
    COMMONWEALTH of Pennsylvania, Appellant, v. Byron SHEPPARD.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1983.
    Filed April 4, 1985.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jeff Shender, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from the order of the court below suppressing: (1) an out-of-court photographic identification of appellee, Byron Sheppard; (2) physical evidence seized incident to appellee’s arrest; and (3) appellee’s inculpatory post-arrest statement. With the exception of the lower court’s order pertaining to the photographic identification, we reverse.

The relevant events giving rise to this appeal are as follows. On February 14, 1981, at approximately 5:45 p.m., two businessmen, Jerome Metz and Mark Hirschman, were assaulted and robbed while they were attempting to deposit approximately $10,000.00 in cash and checks at the Industrial Valley Bank on Chestnut Street in Philadelphia. That evening Mr. Metz examined police “mug books,” but he could not positively identify any of the perpetrators. On March 9, 1981, Mr. Metz was shown an additional array of photographs and positively identified Sheppard as one of the felons. Based on this identification an arrest warrant was obtained for Sheppard. The warrant was executed on March 21, 1981, when Sheppard was discovered to be in custody under an assumed name on another charge. A pair of glasses was seized incident to Sheppard’s arrest as they were similar to the description of those worn by one of the perpetrators. After his arrest, Sheppard waived his Miranda rights and gave a knowing, intelligent and voluntary statement acknowledging his involvement in the robbery and identifying Adrian Miles as one of his co-conspirators. This information led to Miles’ arrest and a statement by him.

Sheppard, who was charged with robbery and related offenses, filed a motion to suppress out-of-court and in-court identification testimony, the glasses, and his statement. Following a consolidated suppression hearing for Sheppard and Miles, the lower court found as a fact that the Commonwealth had failed to preserve the photographic array from which Mr. Metz had identified Sheppard on March 9, 1981. Based on our decision in Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974), the suppression court held that the failure to preserve the exact array rendered the out-of-court identification testimony inadmissible. The court did find, however, that an independent basis existed for Mr. Metz to make an in-court identification of Sheppard.

Notwithstanding the finding of an independent basis for an in-court identification, the suppression court held that the out-of-court identification, which had to be suppressed under Jackson, illegally tainted every event that followed. In other words, the court found that the out-of-court identification was the linchpin without which there was not probable cause for Sheppard’s arrest. The court then reasoned that Sheppard’s arrest and statement which led to Miles’ arrest and statement were “the fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Consequently, the court granted Sheppard’s motion to suppress the out-of-court photographic identification, the glasses seized incident to his arrest, and his statement. In addition, Miles’ statement was also suppressed. This appeal followed.

In Commonwealth v. Jackson, supra, we held that where the Commonwealth fails to produce at the suppression hearing the photographic array which resulted in an out-of-court identification, the defendant’s right to due process of law is violated. See also Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977). In order to protect the defendant’s due process rights, we deemed it an appropriate sanction that the evidence of the photographic identification be suppressed. This prophylactic exclusionary rule was fashioned not because we presumed that the identification procedure was suggestive, but rather because we recognized that failure to produce the photographic array made it virtually impossible to determine whether the identification procedure was in fact suggestive. The question presented by this appeal is: Whether the failure to preserve and produce the photographic array — the showing of which resulted in an identification providing probable cause for an arrest warrant — mandates suppression of all evidence obtained subsequent to appellee’s arrest? We hold it is does not. We believe suppression of the out-of-court identification is sufficient sanction for the Commonwealth’s failure to preserve and produce the photo array. While we refuse the Commonwealth’s request to reverse Jackson in light of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), we draw support for our decision from that case.

In Brathwaite, the court held that the Due Process Clause of the Fourteenth Amendment does not require the exclusion of pretrial identification evidence obtained by a procedure that is both suggestive and unnecessary, provided, under the totality of the circumstances, the identification is reliable. In reaching this decision, the court pertinently observed: “Unlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the exclusion of evidence derived from a constitutional violation do not bear on the instant problem.” Id. at 113 n. 13, 97 S.Ct. at 2252 n. 13. Consequently, even were we to assume that the instant pretrial identification was in fact suggestive, it is apparent that none of appellee’s constitutional rights were abridged incident to that identification which provided probable cause for his arrest. Moreover, it settled that probable cause for arrest can be based on evidence which is not admissible at trial. U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Commonwealth v. Turner, 478 Pa. 613, 387 A.2d 657 (1978) (plurality opinion); see also Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983).

In view of the foregoing, we have no hesitancy in concluding that probable cause for an arrest may be based on a pretrial photographic identification even though that identification is subsequently suppressed because of the Commonwealth’s failure to comply with Commonwealth v. Jackson, supra. Cf Commonwealth v. Moore, supra. This decision is particularly appropriate in the instant case given the lower court’s finding that notwithstanding the violation of Jackson, the identifying witness, Metz, had an independent basis for making an in-court identification of appellee. Indeed, the finding of an independent basis for an identification supports the conclusion that Metz’ ability to identify appellee was not the product of any putative illegality and, therefore, could not conceivably taint the arrest.

In sum, we hold that the Commonwealth’s failure to produce the photographic array at the suppression hearing precludes evidence at trial regarding the out-of-court identification. We further hold, however, that failure to produce the array did not invalidate appellee’s judicially authorized arrest. Accordingly, the lower court erred in suppressing the physical evidence seized incident to appellee’s arrest and his post-arrest statement.

Order affirmed in part and reversed in part. Remand to the trial court. Jurisdiction is relinquished.

      . As the Commonwealth has certified that the order in question substantially handicaps the prosecution, this appeal is properly before us. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Sheppard also identified the third participant in the robbery.

      . Miles challenged the admissibility of his statement.

      . The Commonwealth has taken a separate appeal from the suppression order relative to Miles.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    491 A.2d 882
    THOMAS A. ARMBRUSTER, INC., A Pennsylvania Corporation v. Eugene V. BARRON, Edward J. Ressler, Sr. and Edward J. Ressler, Jr. Appeal of Eugene V. BARRON.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed April 12, 1985.

      Michael C. Deschler, Bethlehem, for appellant.
    Henry S. Perkin, Allentown, for appellee.
    Before CAVANAUGH, CHULLO and JOHNSON, JJ.
   CAVANAUGH, Judge:

Eugene V. Barron, appellant, and two others, were officers and sole shareholders in the RBR Corporation (hereinafter, RBR). The primary purpose of RBR was to construct a bowling alley. Each of the principals owned a one-third interest in the corporation. On March 6, 1979, Thomas A. Armbruster, Inc., a general contractor, entered into a construction agreement with RBR to build the bowling alley. On March 30th of the same year, Armbruster discovered that RBR did not own the land upon which the bowling alley was being constructed, and also that RBR had not yet obtained financing for the project. On May 14, 1979, during a meeting held at the office of Michael Prokup, Armbruster’s attorney, Mr. Prokup requested Barron and one of the other principals to personally guarantee the corporation’s debt in consideration of Armbruster’s promise to proceed with construction. Barron offered to personally guarantee the corporation’s debt and stated that he would put up his taproom as security. He expressed his belief that the corporation would receive financing in thirty to sixty days. The lower court found that attorney Prokup accepted Mr. Barron’s offer of guaranty at the same meeting of May 14th.

Appellant Barron contends, among other things, that since the guaranty he allegedly made was oral, it is unenforceable due to the Statute of Frauds. 33 P.S. § 3 states:

§ 3. Promise to answer for debt of another
No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized. 1855, April 26, P.L. 308, § 1.

Promises to pay the debt of another must be in writing for at least two reasons. The first is evidentiary. The second, cautionary.

Like other provisions of the statute [of frauds], the suretyship provision serves an evidentiary function. Indeed, Williston suggested that the circumstance that ‘the promisor has received no benefit from the transaction ... may make perjury more likely, because while in the case of one who has received something the circumstances themselves which are capable of proof show probable liability, in the case of a guaranty nothing but the promise is of evidentiary value.’ Furthermore, though in many instances the surety is paid by the principal for his undertaking, in others the surety’s motivation is purely gratuitous and, ‘as the lack of any benefit received by the guarantor increases the hardship of his being called upon to pay, it also increases the importance of being very sure that he is justly charged.’
In addition to its evidentiary role, the provision serves a cautionary function. By bringing home to the prospective surety the significance of his act, it guards against ill-considered action. Otherwise, he might lightly undertake the engagement, unwisely assuming that there is only a remote possibility that the principal will not perform his duty____

E.A. Farnsworth, Contracts § 6.3 (1982).

However, appellee argues that Barron’s personal guaranty need not be in writing to be enforceable because it falls within a judicially created exception to the Statute of Frauds called the “leading object” (or “main purpose”) rule. The lower court agreed with this contention and held that the oral guaranty is enforceable. The leading object rule has been explained as follows: “Whenever the main purpose and object of the promisor, is, not to answer for [the debt of] another, but to subserve some pecuniary or business purpose of his own ... his promise is not within the statute [of frauds], although it may be in form a provision to pay the debt of another.... ” Goodling v. Simon, 54 Pa.Super. 125, 127 (1913). See also Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972); Eastern Wood Products Co. v. Metz, 370 Pa. 636, 89 A.2d 327 (1952). The rationale for this exception is as follows:

Where the surety-promisor’s main purpose is his own primary or business advantage, the gratuitous or sentimental element often present in suretyship is eliminated, the likelihood of disproportion in the values exchanged between promisor and promisee is reduced, and the commercial context commonly provides evidentiary safeguards. Thus there is less need for cautionary or evidentiary formality than in other cases of suretyship.

Restatement (Second) of Contracts § 116 comment a.

It is for us to determine if the lower court abused its discretion in holding that Barron’s main purpose for making the guaranty was to serve his own pecuniary or business interests. We hold that it did not.

The difficult question has been and continues to be: what is the test for determining when the promisor’s promise is basically to benefit himself rather than to benefit and accommodate another? The formulations which have emanated from the many cases are invariably insufficient. Thus, where the promise is labelled an ‘original obligation’ rather than a collateral one, or where the promisor is called a ‘debtor’ rather than a surety, the courts are not supplying workable tests but are merely stating conclusions. The reason for the lack of success in formulating a test is that the question to be answered relates to the purpose, motive, object or desire of the promisor and, therefore, it can only be answered by analyzing the complex of objective manifestations surrounding the making of the promises.

J. Murray, Murray on Contracts § 316 (2d ed. 1974).

The question of the promisor’s purpose is best left to the trier of fact, the trial judge in this case. He is far better situated to weigh the evidence and judge the credibility of witnesses than is an appellate court, which has only the cold, lifeless record to guide it. See Kampman v. Pittsburgh Contracting & Engineering Co., 316 Pa. 502, 175 A. 396 (1934). The lower court found that Barron and another of the three principals in the corporation promised to pay RBR’s debts in order to protect their interests in the project. They had invested money to purchase the land and to obtain financing. According to the lower court, that money plus potential future profits would have been lost had the construction ceased. Thus, the court concluded that Barron’s leading object in making the guaranty was to serve his own pecuniary purpose.

However, Barron argues that because he owned only 33Vs % of the corporate shares, his main purpose in guaranteeing the corporation’s debt was to serve the corporation’s pecuniary interest, and not his own. In support of this, he cites Acme Equipment Company v. Allegheny Steel Corporation, 207 Pa.Super. 436, 217 A.2d 791 (1966). In Acme, Rudy Valentino, President and owner of 25% of Allegheny Steel Corporation stock, orally guaranteed a debt incurred by Allegheny. In determining Valentino’s main purpose, the court reasoned as follows:

The only question raised by appellant is whether Valentino’s promise was made not to answer for the debt of another but, primarily, to serve his own pecuniary interest as a stockholder and president of Allegheny. Although the above statute does not apply if the main object of the promisor is to serve his own pecuniary or business purpose, Eastern Wood Products Company v. Metz, 370 Pa. 636, 89 A.2d 327 (1952), the statute is not rendered inapplicable merely because a stockholder may indirectly receive some gain when he promises to pay the debt of a corporation. In Bayard v. Pennsylvania Knitting Mills Corp., 290 Pa. 79, 84, 137 A. 910, 912 (1927), the Supreme Court stated: “Ordinarily, the interest which a stockholder has is not individual, for he cannot be held for the corporate debts, and, if a promise to indemnify its creditor is made, the statute of frauds applies. * * The mere fact that such person is concerned in promoting the financial success of the company is not sufficient to justify the treating of the promise of guaranty as an original undertaking. * * * ”
Eastern Wood Products Company v. Metz, supra, is distinguishable from the present case. In Metz the stockholder owned 100 per cent of the stock; his promise was clearly made to protect and benefit himself as the sole stockholder of the company. Valentino, however, is the owner of only 25 per cent of the stock of Allegheny. Such ownership, of itself, would not establish that the promise was made by Valentino for the main purpose of serving a pecuniary or business purpose of his own. Consequently, Valentino’s alleged promise fell within the Statute of Frauds, and no action could be brought on it.

Acme Equipment Company v. Allegheny Steel Corporation, 207 Pa.Super. at 438-39, 217 A.2d at 792.

Applying the Acme court’s rationale to the instant case, the fact that Barron was a 33%% owner of RBR does not, in and of itself, establish that his main purpose was to serve his own pecuniary interest. The percentage of a shareholder/guarantor’s corporate ownership should never be the sole criteria employed to determine his main purpose in guaranteeing a debt incurred by his corporation. Significant scholarship has been afforded the question of what constitutes a shareholder’s main purpose whenever he guarantees a debt incurred by his corporation.

Another cluster of cases involves promises by stockholders of corporations to pay corporate bills if promisees would continue to supply goods and services. These promises are motivated by the stockholders’ own interests and the leading object is to protect the value of the stock. Yet such promises are usually held to be within the Statute [of Frauds] unless the benefit of the promisor can be shown to be special, direct and/or immediate.

J. Murray, Murray on Contracts § 316 (2d ed. 1974). (Emphasis added). Considering the same question, the eminent contract scholar Arthur Corbin wrote: “If the only expected gain to the promisor is in the protection of the value of his shares, the promise is held to be within the statute; but there are cases in which the promisor was found to have received a special benefit that constituted his ‘leading object’ and made him an original debtor.” 2 A. Corbin, Corbin on Contracts § 372 (1950).

In the instant case, Barron’s main purpose in guaranteeing RBR’s debt was not merely to protect the value of his shares. The lower court found that he sought to protect his own personal financial interests in the project. This suggests that there was not great disproportion in the values exchanged by Barron and Armbruster, thus eliminating one important reason for requiring that the guaranty be in writing. As this was a business deal motivated by a desire to preserve a present investment and to insure future profits, the commercial context provides sufficient evidentiary and cautionary safeguards without requiring the guaranty to be in writing. The guaranty hardly seems to have been a gratuitous or sentimental gesture on Barron’s part. Rather, it appears to have been motivated by a rational business judgment. Thus, an important reason for insisting that guarantees be in writing — that of insuring that the guarantor acted with deliberation — has no application to the instant case.

Moreover, the fact that RBR was a fledgling corporation in the embryonic stages of its development lends credence to our holding that this guaranty falls within the leading object rule. Barron’s promise was not made merely to aid a proven business but to insure the very financial success of a new enterprise. Failure to give the requested guaranty may well have hindered RBR’s chances of survival. Thus, the benefit Barron stood to receive from his guaranty was more immediate and direct than it would be were he a shareholder who guaranteed the debt of a more firmly established corporation. Furthermore, despite the fact that RBR was a separate legal entity, because of its fledgling status it is quite likely that Barron did not yet view it as having a life of its own, so dependent was it on his personal efforts. If Barron viewed the corporation as but a dependent extension of himself, an entity without life but for the financial aid he fed it, then a fortiori, the main purpose of his promise would have been to benefit himself, not “another”. Such would not be the case where a shareholder guarantees the debt of a more firmly established corporation. In sum, the evils which the Statute of Frauds was designed to guard against are not present in this case and there is less need for the evidentiary and cautionary formalities than in other guaranty situations. See Restatement (Second) of Contracts § 116 comment a. We hold, therefore, that this case falls within the leading object rule and that the oral guaranty is not barred by the Statute of Frauds.

Barron also alleges that there was a lack of assent and that, therefore, his guaranty is not binding on him. He contends, among other things, that the guaranty agreement was not unconditionally and absolutely accepted. On May 14, representatives of RBR and Armbruster met in the office of Armbruster’s attorney, Michael Prokup. It was during this meeting that the personal guaranty was discussed. The lower court found that Barron made the offer to guaranty RBR’s debt and that Mr. Prokup accepted it at this meeting. However, Barron now alleges that Prokup never accepted his guaranty offer and, in support of this, he points to a letter written on May 21, 1979 by Mr. Prokup to a representative of RBR, Barron’s Corporation, which includes the following language:

Insofar as securing payment to Armbruster for the work that has been performed, Mr. Barron proposes to use his saloon in Bethlehem as security for the same. In that regard, I will need the following information: The exact names of the title holders for the real estate wherein the saloon is located, the exact address of the saloon; the names in which the liquor license and amusement permit have been registered; and the date of acquisition of the real estate and the liquor license. Upon receipt of this information, I shall prepare a Judgment Note to be signed by the title holders of the real estate for the amount of $18,000.00, and thereafter recorded to secure payment for work that has been done to date. By accepting this security for payment, however, it does not obligate Armbruster to go on with the project; rather, this security arrangement is only to guaranty payment of that work which has already been done by Armbruster. Any further construction work will be done only after we can be assured that your clients own the premises on Club Avenue and that adequate arrangements for construction financing have been made.

Barron contends that Mr. Prokup did not accept the guarantee either at the meeting of the fourteenth or by the letter of the twenty-first. According to Barron, Mr. Prokup merely requested information concerning the taproom which Barron had offered as security for the debt.

It is a basic principle of the law of contracts that an acceptance must be unconditional and absolute. Hedden v. Lupinsky, 405 Pa. 609, 176 A.2d 406 (1962). “The question of whether a communication by an offeree is a conditional acceptance or counter-offer is not always easy to answer. It must be determined by the same common-sense process of interpretation that must be applied in so many other cases.” 1 A. Corbin, Corbin on Contracts § 82 (1963). An alleged acceptance is not unconditional, and is thus not an acceptance, if it alters “the terms of the offer in any material respect. . . .” 1 A. Corbin, Corbin on Contracts § 82 (1963). We do not find that the letter materially altered the terms of the guaranty. Mr. Prokup’s request for information in the letter of May 21 may be viewed not as a condition to his acceptance, but rather as a mere ministerial formality necessary to the performance of the contract and which was surely contemplated by the parties at the time of the agreement. “Where the facts are in dispute, the question of whether a contract was formed is for the jury to decide____ ‘People do business in a very informal fashion, using abbreviated and elliptical language. A transaction is complete when the parties mean it to be complete. It is a mere matter of interpretation of their expressions to each other, a question of fact.’ 1 A. Corbin, Corbin on Contracts § 29 (1963).” Ingrassia Construction Company, Inc. v. John M. Walsh, 337 Pa.Super. 58, 66, 486 A.2d 478, 482 (1984). We see no reason to disturb the lower court’s finding that there was an acceptance by Armbruster in the instant case.

Barron also contends that essential terms were missing so as to render the contract fatally indefinite or incomplete. He argues that the guaranty was not unlimited and that he agreed to be personally liable only for that work which had been completed by May 14, 1979. Barron alleges that the extent of his monetary liabilities was limited to $18,000.00, an amount equivalent to the work done up until May 14, 1979. Appellant’s contention appears to be borne out by the following portion of Mr. Prokup’s letter of May 21: “[Tjhis security arrangement is only to guarantee payment of that work which has already been done by Armbruster.” As an appellate court, however, we are reluctant to masquerade as trier of fact and attempt to determine whether Prokup’s letter accurately states the terms to which the parties assented. Nor will we surmise what the parties agreed to based upon the cold, lifeless record before us. While the letter of May 21 may be of some evidentiary value, we are unable to discern its credible worth. The only course open to us is to remand. If upon remand the lower court is able to determine the extent of Barron’s monetary liability under the guaranty, then the contract should not be deemed fatally indefinite or incomplete as there would be a basis for fashioning a remedy.

Therefore, we remand this case so that the lower court may determine the extent of Barron’s monetary liability as it was agreed upon by the parties. We do not retain jurisdiction.

Case remanded for a determination of Barron’s monetary liability.

      . Appellant alleges that the lower court did not utilize the proper burden of proof in resolving the factual issue of whether or not an oral guaranty was given. The proper burden is that of clear and convincing evidence. See Jefferson-Travis, Inc. v. Giant Eagle Markets, Inc., 393 F.2d 426 (3d Cir.1968). We find nothing in the lower court opinion to indicate that the lower court employed any burden other than the correct one.

      . Appellant alleges that the lower court erred in considering the testimony of a witness which was not transcribed. A trial judge may consider any evidence, even testimony which has been agreed not to be reproduced. He, of course, may not consider evidence which has been ordered stricken from the record. Appellant points to nothing in the record which would indicate that the testimony was ordered stricken from the record. The trial court chose to believe this witness, an employee of appellee, when he testified that Barron had not told him to stop work on the project. We shall not disturb this finding.


author: WIEAND, Judge:

text:
    491 A.2d 888
    Thomas BAILEY, Administrator of the Estate of Lincoln Bailey, Appellant, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed April 12, 1985.

      Daniel J. Barrett, Towanda, for appellant.
    James A. Pruyne, Towanda, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Thomas Bailey, Administrator of the Estate of Lincoln Bailey, deceased, commenced an action on behalf of his decedent, who had been killed in an automobile accident, to recover work loss benefits from Harleysville Mutual Insurance Company pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.101 et seq. The action was terminated during trial when a judgment in the amount of $1,000.00 was entered by agreement in favor of Bailey and against Harleysville. The judgment was paid and marked “Satisfied.” Thereafter, Bailey filed a second action against Harleysville to recover an additional $14,000.00 in work loss benefits. Bailey moved for judgment on the pleadings, which consisted of a complaint, an answer containing new matter, and a reply. The trial court denied Bailey’s motion and, instead, entered summary judgment in favor of Harleysville. The trial court did so because it concluded that a second action between the same parties was barred by principles of res judicata. Bailey appealed. We affirm.

A trial court may properly enter judgment against the party filing a motion for judgment on the pleadings if a review of the pleadings clearly supports the judgment. Boron v. Smith, 380 Pa. 98, 102, 110 A.2d 169, 171 (1955); Volkert v. Swan, 197 Pa.Super. 576, 582-583, 179 A.2d 274, 277 (1962); Knecht v. Medical Service Association of Pennsylvania, 186 Pa.Super. 456, 459, 143 A.2d 820, 822 (1958); Pa.R.C.P. 1034(b). However, a judgment on the pleadings may be entered only in cases which are clear and free from doubt.” Engel v. Parkway Co., 439 Pa. 559, 561, 266 A.2d 685, 686 (1970).

“[A] final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties ... on the same cause of action.” Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76. Accord: Schultz v. City of Philadelphia, 314 Pa.Super. 194, 199, 460 A.2d 833, 835 (1983). A future suit is barred because the cause of action has been merged into the judgment. Lance v. Mann, 360 Pa. 26, 28, 60 A.2d 35, 36 (1948). The public policy underlying the doctrine of res judicata is “to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and protect the party relying on the prior adjudication from vexatious litigation.” Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 482 (1978). The doctrine is to receive a liberal interpretation and should be applied without technical restriction. Haines Industries, Inc. v. City of Allentown, 237 Pa.Super. 188, 191, 355 A.2d 588, 589 (1975). It is applicable where the prior judgment was entered by default. Zimmer v. Zimmer, 457 Pa. 488, 326 A.2d 318 (1974); Devlin v. Piechoski, 374 Pa. 639, 99 A.2d 346 (1953). It is also applicable where the judgment was entered by agreement. “Although a consent decree is not a legal determination by the court ... it binds the parties with the same force and effect as if a final decree has been rendered after a full hearing upon the merits.... The fact that without the consent of the parties the court might not have rendered the judgment does not affect its effect as res judicata. . . .” Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 500, 327 A.2d 72, 75 (1974) quoting Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962). The doctrine is applicable even though there has been a change or new development in the law following the entry of a final judgment in the first action. Haines Industries, Inc. v. City of Allentown, supra.

Appellant’s present action is barred by the judgment entered in the prior action between the same parties on the same cause of action. His argument that the second action asserted a new and different cause of action must fail. The decedent was killed on June 29, 1980. By the time the first action was brought, appellant’s claim for work loss benefits had fully accrued; the complaint asserted a right to recover the maximum amount payable, viz. $15,000.00. If appellant had recovered the amount claimed, Harleysville’s liability for work loss benefits would have been extinguished. A settlement and judgment in the amount of $1,000.00 was also effective to extinguish appellant’s claim for work loss benefits and appellee’s liability therefor. The maximum work loss benefit can be recovered only once; and after a cause of action therefor has been extinguished by the entry of judgment, a new cause of action cannot be asserted for wages lost because of the inability of the decedent to work thereafter. A defendant has a right to rely on the stability of judgments and have an end to litigation instituted against him. We hold, therefore, that after an estate’s claim for the maximum work loss benefit has been terminated by a judgment on the merits, no further action can be brought for wages lost thereafter.

The decision of the Supreme Court in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983) does not command a different result. It was there held that work losses accrue as a decedent is unable to work and that the statute of limitations begins to run when each loss is actually sustained. After the maximum compensable loss has occurred, however, a cause of action therefor has fully accrued, and an action must be commenced within two years thereafter. New causes of action for work loss benefits do not arise periodically thereafter ad infinitum. So also, when a fully accrued cause of action for the maximum benefit is the subject of a legal action which proceeds to judgment, new causes of action for additional work losses do not arise periodically thereafter.

Appellant argues that the agreed judgment is not a bar to further proceedings because the trial court did not make a separate finding that the settlement was in the best interests of the claimant. In support of this argument he cites Section 106(b)(1) of the No-fault Act, 40 P.S. § 1009.-106(b)(1) which provides as follows:

(b) Release or settlement of claim.
(1) Except as otherwise provided in this subsection, no-fault benefits shall not be denied or terminated because the victim executed a release or other settlement agreement. A claim for no-fault benefits may be discharged by a settlement agreement for an agreed amount payable in installments or in a lump sum, if the reasonably anticipated net loss does not exceed two thousand five hundred dollars ($2,500). In all other cases, a claim may be discharged by a settlement to the extent authorized by law and upon a finding, by a court of competent jurisdiction, that the settlement is in the best interest of the claimant and any beneficiaries of the settlement, and that the claimant understands and consents to such settlement____

This section of the statute, however, is not applicable to the instant case. It does not purport to affect either the validity or finality of a judgment on the merits in a prior action. We are not here concerned merely with a “release or other settlement agreement.” Appellant’s claim for maximum work benefits went to trial and was concluded during trial by the entry of a judgment. “So long as [that] judgment stands unreversed ... it may not be questioned in any other case.” Devlin v. Piechoski, supra, 374 Pa. at 643, 99 A.2d at 348. Moreover, the judgment was entered by and with the express approval of the trial court. The finality of that judgment is not impaired by the court’s failure to go further and make an express finding that it was in the best interests of the claimant that the judgment be entered.

When the first action was tried, there was considerable uncertainty about the right of the estate of a decedent to recover work loss benefits without proof of dependency. Bailey and Harleysville determined to resolve this uncertainty and terminate their litigation by entering an agreed judgment. That judgment is res judicata and bars a second action on the same cause. The uncertainty in the law was thereafter resolved judicially by the decision in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), which held that dependency was not determinative of the right of a decedent’s estate to recover work loss benefits. This development in the law did not prevent application of the doctrine of res judicata to bar a second action. Cf. Haines Industries, Inc. v. City of Allentown, supra.

The order entering judgment on the pleadings is affirmed.


text:
    491 A.2d 892
    Jeffrey MELMED, Appellant, v. Faye L. Reiner MOTTS and Alice Drake, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed April 12, 1985.

      Daniel P. Lyons, Stroudsburg, for appellant.
    Robert E. Bogen, Saint Marys, for Motts, appellee.
    Mark S. Love, Stroudsburg, for Drake, appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Jeffrey Melmed was injured when the motorcycle on which he was riding collided with a vehicle owned and operated by Faye L. Reiner Motts. Alice Drake was a passenger in the Motts vehicle. She was an elderly lady who had been taken to dinner by Ms. Motts, her private duty nurse. Melmed filed a complaint naming both Motts and Drake as defendants. The complaint contained an averment that at the time of the accident Motts had been the employee of Drake and had been acting within the scope of her employment. After the pleadings were closed, Drake filed a motion for summary judgment. The trial court concluded from Drake’s depositions that she had not been the employer of Motts and had not had the right to control the manner in which Motts performed her duties. Therefore, the court entered a summary judgment in favor of Drake. Melmed appealed. We reverse.

In Raffensberger v. Moran, 336 Pa.Super. 97, 485 A.2d 447 (1984), this Court reviewed the principles applicable to summary judgments as follows:

“Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981). See also: Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 123, 469 A.2d 212, 213 (1983). “It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” Thorsen v. Iron and Glass Bank, supra, 328 Pa.Super. at 141, 476 A.2d at 931; Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 290 (1983). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Id., 336 Pa.Superior Ct. at 102, 485 A.2d at 450. See also: Barber v. Harleysville Mutual Insurance Company, 304 Pa.Super. 355, 358, 450 A.2d 718, 719-720 (1982).

In an action to recover damages vicariously for injuries resulting from an automobile accident, it is necessary for the plaintiff to prove not only that the driver was the defendant’s servant, but that such servant was at the time engaged in his master’s business. Klein v. Klein, 311 Pa. 217, 219, 166 A. 790, 791 (1933). A servant, in law, is “a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.” Restatement (Second) of Agency § 220(1) (1958). “It is not ... the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.” Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299, 300 (1950), quoting 27 Am.Jur. Independent Contractor § 6, at 487 (1940). See also: Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981). It is the exclusive function of the jury to determine, from the evidence, the precise nature of the relationship, except where the facts are not in dispute, in which latter event the question becomes one for determination by the court. Feller v. New Amsterdam Casualty Co., supra 363 Pa. at 486, 70 A.2d at 300-301. See also: Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 299, 467 A.2d 330, 333 (1983); Breslin v. Ridarelli, 308 Pa.Super. 179, 184, 454 A.2d 80, 82 (1982). A summary judgment, however, cannot be rested solely upon the oral depositions of the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 213-214, 412 A.2d 466, 473-474 (1979). The credibility of the moving party’s testimony is a question of fact for the jury. Nanty-Glo Boro v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).

The summary judgment in the instant case was entered, according to the trial court, on “circumstances of Defendant Motts’ employment” as follows:

Defendant Drake is an elderly widow who is no longer able to adequately care for herself. Motts was hired by Northeastern Bank of Pennsylvania, Trustee over an inter vivos trust for Defendant Drake, primarily to provide health care for Drake. Motts also performed such services as cleaning, washing and the providing of meals. In this regard, Defendant Drake has made the following statement about the nature of Motts’ employment:
I do not supervise Mrs. Motts — She does pretty much what she wants — She comes in the morning, cooks my breakfast, makes the bed [and] leaves — She comes back for lunch and then dinner.... During the hours Faye [Motts] is here I never tell her what to do — She knows pretty much what to do — I don’t have to say anything to her____

Defendants Drake and Motts eat dinner out approximately five nights a week. On these occasions, Motts uses her own vehicle for their transportation. Defendant Drake does not drive, has never learned to drive and does not own an automobile. Normally Motts pays for the gasoline used by her automobile in taking Defendant Drake to dinner, but occasionally, Drake will pay for the gasoline as a courtesy. In regards to their dinner trips, Defendant Drake has stated that “We just go where we feel like. She’ll [Motts] ask me if I have a preference, however.”

Trial court opinion, at 6-7 (footnotes omitted).

Based on the foregoing, we are constrained to conclude that the trial court erred by entering a summary judgment in favor of Drake. In the first place, the trial court based the summary judgment on oral depositions of Alice Drake, who was the moving party. The credibility of her testimony was an issue for the jury to decide; credibility could not properly be determined as a matter of law by the court. The record does not disclose, moreover, that any testimony has as yet been received from the other defendant, Faye Motts, or that the plaintiff, Jeffrey Melmed, has had an opportunity to produce evidence on this issue. Affidavits have not been filed; and the summary judgment, therefore, was based solely on the pleadings and the depositions of Alice Drake. Finally and in any event, the testimony of Alice Drake, even if believed, did not establish as a matter of law that her nurse was an independent contractor rather than an employee. The nature of the relationship between nurse and patient, rather, was an issue for the jury. The trial court erred when it held otherwise.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


text:
    491 A.2d 894
    Herbert A. BRINKLEY, Parent and Natural Guardian of David J. Brinkley, a minor, Appellant, v. Jeffrey Ray PEALER, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed April 12, 1985.

      Thomas E. Brenner, Harrisburg, for appellant.
    Scott A. Fleischauer, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

David J. Brinkley, a minor, was driving a Volkswagen station wagon owned by his father, Herbert A. Brinkley, when he was involved in a collision with a truck being operated negligently by Jeffrey Ray Pealer. Herbert A. Brinkley, parent and natural guardian for his son, filed a complaint against Pealer to recover damages to his vehicle, medical bills incurred because of his son’s injuries in the amount of $500, and damages for his son’s pain and suffering. It was alleged that the vehicle being driven by Pealer had been an unsecured vehicle owned by Robert N. Butt. The defendant, Pealer, filed preliminary objections in the nature of a demurrer on grounds that the action was barred by the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act. The trial court sustained the preliminary objections and dismissed the complaint. Brinkley appealed. We affirm in part and reverse in part.

Section 301(a) of the No-fault Motor Vehicle Insurance Act, supra, 40 P.S. § 1009.301(a), provides as follows:

(a) Partial abolition. — Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
(1) An owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.
(2) A person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.
(3) An individual remains liable for intentionally injuring himself or another individual.
(4) A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act. A person is not liable for loss which is not compensated because of limitations in accordance with subsection (e) of section 202 of this act.
(5) A person remains liable for damages for non-eeonomic detriment if the accident results in:
(A) death or serious and permanent injury; or
(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or
(C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or
(D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.
(6) A person remains liable for injury arising out of a motorcycle accident to the extent that such injury is not covered by basic loss benefits payable under this act, as described in section 103.

A tort claim for property damage is not barred by Section 301(a) of the No-fault Motor Vehicle Insurance Act. Fitzpatrick v. Branoff, 504 Pa. 169, 172, 470 A.2d 521, 523 (1983). Therefore, it was error to sustain preliminary objections in the nature of a demurrer to the second count of the complaint which contained a claim for damages caused to the Brinkley vehicle.

The complaint has failed, however, to state a legally cognizable cause of action for personal injuries. The medical expenses for appellant’s son were only $500, and appellant has not alleged that his son’s injuries or scarring were serious. He relies rather upon Section 301(a)(1) which provides that “an owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.” The issue for our determination, therefore, is whether the legislature’s preservation of a common law tort action against an owner of an unsecured vehicle was intended to include the right to bring an action against the operator of an unsecured vehicle.

The words and phrases used in any legislation are to be construed according to their common meaning and accepted usage. Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). In construing the provisions of the No-fault Act, we should not disregard the clear and unambiguous language of the Act on the pretext that a literal interpretation will frustrate its spirit. Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 381 n. 2, 447 A.2d 1017, 1018 n. 2 (1982). The Act specifically defines an “owner” to mean “an individual ... that owns or has title to a motor vehicle or is entitled to the use and possession of a motor vehicle subject to a security interest held by another.” Act of July 19, 1974, supra, art. I, § 103, 40 P.S. § 1009.103. It seems clear that Pealer does not come within the parameters of this definition of “owner.”

The same issue was considered and discussed by David Shrager in his work entitled The Pennsylvania No-fault Motor Vehicle Insurance Act. He concluded as follows:

This paragraph retains tort liability only for the owner of the unsecured vehicle. Since, under the provisions for security covering the vehicle, only the owner is required to furnish such security, the driver of an unsecured vehicle who is not the owner is not liable in tort under the tort action retained by this paragraph____ Thus, an accident victim in such circumstances will rely upon uninsured motorist coverage, which continues to be mandatory, and will in most instances be available under his own insurance policy.

D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act § 2:5.1, at 191 (1979) (emphasis in original).

Appellant argues that if appellee was the thief and had control of the truck on the day of the accident, he was the “de facto” owner because he was holding it out as his own vehicle. As a “de facto owner,” appellant contends, Pealer should have purchased insurance coverage for the truck. Although appellant’s argument equating theft with ownership is ingenious, we must reject it. Not only would it require that we rewrite the legislative definition of “owner,” but it would be entirely impractical to interpret the statute to require a thief to obtain insurance coverage for a stolen vehicle. The no-fault statute, moreover, made provision for an innocent victim of a collision involving a stolen vehicle. If the innocent, injured party is uninsured and no security is applicable to any vehicle involved in the accident, then his basic no-fault benefits will be provided by “the applicable assigned claims plan.” Act of July 19, 1974, supra, § 204(a), 40 P.S. § 1009.204(a).

Appellant also asserts reliance upon Section 208(a)(1) of the Act, which provides in part:

Except as provided for assigned claims, a converter of a motor vehicle is ineligible to receive no-fault benefits ... from any source other than a contract of insurance under which he is an insured, for any injury arising out of the maintenance or use of the converted vehicle.

40 P.S. § 1009.208(a)(1). This section, however, is clearly inapplicable. It provides merely that a converter of a motor vehicle becomes partially ineligible to make a claim for no-fault benefits. The section provides no assistance in construing the section of the statute which abolishes common law tort actions for personal injuries.

Next, appellant directs us to Section 501, which provides:

The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustment costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator’s license.

40 P.S. § 1009.501 (emphasis added). This provision is also not applicable to the facts of the case sub judice. It gives an insurer a right of indemnification against the owner of an unsecured vehicle when the insurer has been required to pay basic loss benefits to an occupant of the derelict owner’s vehicle or to a spouse or relative residing in the household of that owner. Appellant in this case is not an obligor under the Act. Therefore, he has no standing to invoke Section 501. The defendant, moreover, is not the owner of the uninsured motor vehicle. Finally, the party injured was not an occupant of the motor vehicle of an uninsured owner. The injured person was driving his father’s vehicle, which was an insured vehicle. For all these reasons, therefore, Section 501 has no application to this case.

We are told that in reality this action is controlled by appellant’s insurance carrier, which provided uninsured motorist coverage and is now subrogated to the rights of its insured. It is argued that when an insurer has been required to pay its insured’s claim for uninsured motorist benefits, it is then entitled to recompense, through subrogation, from the motorist who tortiously caused the injuries. It is axiomatic, however, that the rights of the subrogee can rise no higher than the rights of the subrogor. 35 P.L.E. Subrogation § 6 (1961). A subrogee is, generally speaking, placed in the precise position of the one to whose rights he has been subrogated. Fell v. Johnston, 154 Pa.Super. 470, 474, 36 A.2d 227, 229 (1944). Therefore, a subrogee cannot recover damages unless his subrogor has a legally cognizable cause of action against the third party. Commonwealth ex rel. Willow Highlands Co. v. Maryland Casualty Co., 369 Pa. 300, 306, 85 A.2d 83, 87 (1952). Because appellant in this case has no common law tort action for personal injuries against appellee, it follows that his subrogee, similarly, cannot maintain such an action.

The order dismissing the first count of appellant’s complaint is affirmed. The order dismissing the second count of the complaint is reversed, and the cause of action therein stated is remanded for further proceedings. Jurisdiction is not retained.

      . Although not alleged in the complaint, we are told by the parties that the truck was stolen.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.


author: McEWEN, Judge: SPAETH, President Judge, TAMILIA, Judge,

text:
    491 A.2d 899
    Shrikant Nandan Prasad SINHA, Appellee, v. Chandra Prabha SINHA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1984.
    Filed April 12, 1985.

      Pamela A. Falls, Muncy, for appellant.
    James R. Flick, Media, for appellee.
    Before SPAETH, President Judge, and McEWEN and TAMILIA, JJ.
   McEWEN, Judge:

Appellant-wife, in this appeal from a final decree in divorce, contends that the trial court erred in finding that appellee-husband, a citizen of India, was a bona fide resident of Pennsylvania for purposes of divorce jurisdiction. Appellant also argues, as an alternative ground for vacating the decree of divorce, that she and her husband had not lived separate and apart for three years as required by Section 201(d) of the Divorce Code, 23 Pa.C.S. § 201(d). We affirm the final decree entered by the now deceased, distinguished jurist of cherished memory, Judge Joseph W. deFuria, following dismissal of appellant’s exceptions to the report of the master.

The parties were married on March 11, 1974, in Patna Bihar, India. Appellee traveled to the United States in August of 1976 on a student visa to pursue a master’s degree in city and regional planning at Rutgers University. Appellant was unable, due to her inability to obtain a visa, to visit or join her husband in the United States. The parties did, however, regularly correspond until mid-1979 when appellee instituted an action in divorce in New Jersey. This action was discontinued by appellee when he moved from New Jersey to Pennsylvania.

Appellee was offered employment with the Delaware County Planning Department and applied for an H-l' (temporary worker) classification under the Immigration Laws. The application was granted and the H-l classification was issued on April 3, 1980. Six months later appellee instituted the present action in divorce in the Court of Common Pleas of Delaware County. Appellee alleged in his complaint that he had been a bona fide resident of Pennsylvania for more than six months, that the parties had been living separate and apart for a period in excess of three years and that the marriage was “irretrievably broken”. See 23 Pa.C.S. § 201(d). A general master was appointed and evidence presented on the issue of the dissolution of the marriage as well as on the jurisdiction of the Pennsylvania courts. The master concluded (a) that the courts of Pennsylvania were possessed of jurisdiction to entertain the divorce action and (b) that appellee was entitled to a decree in divorce! Appellant’s exceptions to the master’s report were dismissed following a hearing and a final decree of divorce duly entered.

Appellant argues that since appellee was permitted to enter the United States pursuant to a temporary non-immigrant visa, his H-l immigration classification required him to maintain, at all relevant times, a permanent residence abroad “which he has no intention of abandoning.” Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H). Appellant asserts that appellee’s permanent residence and domicile, as a matter of federal law, was India. Thus, she argues, the Court of Common Pleas of Delaware County, bound, under the Supremacy Clause, by the provisions of the Immigration and Naturalization Act, was without jurisdiction to entertain the action for divorce.

The Pennsylvania Divorce Code provides that an action in divorce may not be commenced unless one of the parties to the marriage has been a bona fide resident of the Commonwealth for at least six months prior to the institution of the action. 23 Pa.C.S. § 302. This residency requirement has been interpreted by this Court to require actual residence coupled with domiciliary intent. Zinn v. Zinn, 327 Pa.Super. 128, 475 A.2d 132 (1984). See also McKenna v. McKenna, 282 Pa.Super. 45, 422 A.2d 668 (1980); Smith v. Smith, 206 Pa.Super. 310, 213 A.2d 94 (1965). Appellant argues that appellee cannot satisfy both the domiciliary intent requirements of the federal immigration laws and the domiciliary intent requirements of the Pennsylvania Divorce Code, i.e., he cannot intend to maintain his permanent residence in India and also intend to be a permanent, bona fide resident of Pennsylvania. We are not persuaded by this argument. The status of appellee as a nonimmigrant alien with an H-l classification is not necessarily inconsistent with an actual conditional intent to establish, if possible, permanent residency in the United States by the legal means provided by the “Adjustment of Status” section of the Immigration and Naturalization Act of 1952, Ch. 477, § 245, 66 Stat. 217 (1952), as amended, 8 U.S.C. § 1255, a provision which permits aliens already in the United States to apply for permanent resident status. See Elkins v. Moreno, 435 U.S. 647, 667, 98 S.Ct. 1338, 1350, 55 L.Ed.2d 614, 629 (1978). Bustamante v. Bustamante, 645 P.2d 40, 42 (Utah, 1982).

Even if appellant’s alleged intent to establish permanent residency in Pennsylvania is inconsistent with the terms of his right of entry into the United States, he is not automatically precluded from becoming a domiciliary of the Commonwealth. As stated in Williams v. Williams, 328 F.Supp. 1380, 1383 (D.C.V.I., 1971):

Even assuming the least favorable situation, where an alien has misrepresented his true intent at the time he was granted entry to the country, the fact that he may be illegally in the country and deportable would not preclude him from forming an actual intent to make his home here. I see no reason to erect from the immigration laws an insuperable barrier of “constructive” intent in divorce litigation that cannot be overcome even by proof of a person’s actual intent. The enforcement of immigration laws properly remains with those to whom it is entrusted by law and does not need in aid of enforcement the judicially created civil disability of exclusion from our divorce courts. There is no rational ground for intermingling these two distinct areas of law — immigration and divorce.

Accord Nagaraja v. Commissioner of Revenue, 352 N.W.2d 373, 378 (Minn.1984); Nicolas v. Nicolas, 444 So.2d 1118, 1120 (Fla. 3rd D.C.A.1984); Bustamante v. Bustamante, supra at 42; Pirouzkar v. Pirouzkar, 51 Or.App. 519, 524-25, 626 P.2d 380, 383 (1981); Cocron v. Cocron, 84 Misc.2d 335, 343-44, 375 N.Y.S.2d 797, 809 (1975); Gosschalk v. Gosschalk, 48 N.J.Super. 566, 575-77, 138 A.2d 774, 780 (1958). “A visa is a document of entry required of aliens by the United States Government and is a matter under the control of the government. It has little relevance to the question of domicile.” Alves v. Alves, 262 A.2d 111, 115 (D.C.App., 1970).

We conclude that federal law does not prevent the establishment of domicile for purposes of state court jurisdiction by a non-immigrant alien such as appellant.

The final argument of appellee arises from the statutory provision under which the complaint in divorce was filed:

It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken. 23 Pa.C.S. 201(d)(1)

The phrase “separate and apart” is defined as “complete cessation of any and all cohabitation” 23 Pa.C.S. § 104. Appellant cannot, by reason of the span of continents between the parties since 1976, question that their separation meets absolutely this statutory definition of “separate and apart” since more than four years intervened between the departure of appellant from India in 1976 and the initiation of the instant action in divorce in Pennsylvania in 1980. Appellant proceeds to assert that the parties had not, however, been estranged “for a period of at least three years”. “In the review of a divorce case, it is the responsibility of this court to make a de novo evaluation of the record and to decide independently of the master and the lower court whether a legal cause of action in divorce exists.” Jones v. Jones, 311 Pa.Super. 407, 409-11, 457 A.2d 951, 952 (1983). Accord Thomas v. Thomas, 335 Pa.Super. 41, 45, 483 A.2d 945, 946 (1984); Remick v. Remick, 310 Pa.Super. 23, 28-29, 456 A.2d 163, 166 (1983). While it is true that the initial separation was occasioned by the departure of appellant from India to the United States, our examination of the record leads us to conclude that the marriage has been “irretrievably broken” for a period in excess of three years.

Our eminent colleague in a quite compelling concurring and dissenting opinion would require that a marital breakdown precede the three year separation of the parties so that there will have been an irretrievable breakdown for three years prior to the filing of a complaint under 201(d). We need not, however, here address that issue since, as we have noted, the record demonstrates there had been an irretrievable breakdown in this marriage for a period of at least three years prior to the filing of the complaint.

The final decree in divorce is, therefore, affirmed.

SPAETH, President Judge, files a concurring opinion.

TAMILIA, J., files a concurring and dissenting opinion.

SPAETH, President Judge,

concurring:

I agree that the trial court had jurisdiction. I write separately to note that the Divorce Code, 23 P.S. § 201(d)(1), requires only that “the parties have lived separate and apart for a period of at least three years, and that the marriage [be] irretrievably broken” at the time the complaint is filed. “Separate and apart” is defined as “[c]omplete cessation of any and all cohabitation.” 23 P.S. § 104. Here, it is not contested that both the “separate and apart for .. three years” requirement and the “irretrievably broken” requirement are satisfied. There is no requirement in the Code that the marriage have been irretrievably broken for three years prior to the filing of the complaint; and I find no basis for reading such a requirement into the Code. I therefore concur in affirming the order of the trial court.

TAMILIA, Judge,

concurring and dissenting:

I concur with the majority that there is jurisdiction and that appellee has the right to proceed in an action in divorce despite his standing as a non-immigrant visa holder. I dissent to the majority’s finding that the facts establish a separate/apart and irretrievable breakdown of the marriage, ground as required by section 201(d) of the Divorce Code of 1980 (23 P.S. § 101 et seq.).

A close reading of the transcript, particularly the evidence presented in the form of the letters addressed by the appellee to his wife in India between October 1977 and September 1978 (T.T. 3-17-82, pp. 18-25), evidenced an intent to maintain the marital relationship and countervailing evidence to an allegation of irretrievable marital breakdown.

Pennsylvania law is virtually non-existent as to when a separation, which is initially consensual, becomes a separate and living apart ground for unilateral divorce under section 201(d). Obviously, a time during the separation period must be ascertained which triggers the intent to separate and live apart so that the required three year separation can be calculated. Since this is a matter of intent, when the separation is voluntary, it is incumbent upon the party alleging the ground to carry the burden by a preponderance of the evidence which is clear and satisfactory. Jones v. Jones, 311 Pa.Super. 407, 457 A.2d 951 (1983); Regan v. Regan, 227 Pa.Super. 552, 322 A.2d 711 (1974); Smith v. Smith, 206 Pa.Super. 310, 213 A.2d 94 (1965). Appellee presented certain evidence of his state of mind indicating his intent to separate, including filing of a divorce action in 1979. However, appellant supplied letters, which at length and in detail up until September of 1978, presented the mind of a concerned and loving husband who desired to be reunited with his wife in India or the United States. I believe these letters, written during a time when appellee would be considered to express his feelings without motive, are superior in evidentiary quality to his statements presented at trial, when he has motive to retroactively create a state of mind favorable to dissolution of the marriage.

While the appellate courts of Pennsylvania have not yet clarified this issue, this concept has been explored in other jurisdictions and resolved in favor of determining the establishment of the intent to separate, and a continuous uninterrupted period of separation thereafter, as a requirement of the statute.

In Hooker v. Hooker, 215 Va. 415, 211 S.E.2d 34 (1975), the Virginia Supreme Court held:

Where both parties are mentally competent, as in the present case, we hold that, as a prerequisite for a divorce under Code § 20-91(9), there must be proof of an intention on the part of at least one of the parties to discontinue permanently the marital cohabitation, followed by physical separation for the statutory period.
We believe that the words “lived separate and apart” in Code § 20-91(9) mean more than mere physical separation. In our view the General Assembly intended that the separation be coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and that this intention must be shown to have been present at the beginning of the uninterrupted two year period of living separate and apart without any cohabitation. Otherwise, many extended separations required by other circumstances could ripen to “instant divorce without the salutary period of contemplation required by the statute during which the parties have an opportunity for reconciliation, (emphasis added)

The facts are similar to the present case in that Hooker was overseas working as a civilian in Vietnam, and on the way home he informed his wife of his intent to divorce and instructed his lawyer to file for a divorce, using the prior period of time, August 1970 to November 28, 1972, the filing date of the complaint, as the statutorily required period. The' court held that the intent could be factually established at its earliest from the letter to his attorney in May 1972, of his intent to divorce, the wife being informed in September 1972.

Here, defendant, up until September 1978, was manifesting his continued desire to maintain the marital relationship in letters, to his wife in India. The actual letters admitted into evidence, when read in full, carry far more impact than the excerpts read into the record. The first manifestation of intent to permanently terminate marital cohabitation was the pro se complaint for divorce filed in New Jersey (but subsequently withdrawn) in 1979. The clearest manifestation of intent to terminate marital cohabitation is the divorce complaint filed on October 18, 1980, and actively pursued. It is important for policy reasons to view the filing of a complaint in divorce or for support (as with the wife’s petition in India) as indications of marital disharmony, but unless actively pursued, experience shows these are often tactical maneuvers to bring issues in a marriage to a climax, which may result in strengthening the relationship as frequently as leading to dissolution. The numerosity of Pennsylvania cases that deal with the issue as to whether support cases, divorce actions, or property settlement agreements are a basis for positing a time indicating intent to separate, requires no elaboration.

The letters are far more persuasive than appellee’s testimony to establish the intent to withdraw from the marital relationship. Thus I would conclude that the first objective (as opposed to self-serving) evidence of the intent to terminate marital cohabitation in this case, was the filing of the divorce complaint, which was actively pursued, dated October 18, 1980. To hold otherwise would place our imprimatur on conduct (the letters) permitting the husband to lull the wife into belief the marriage was still viable while he had the secret intent to terminate the relationship. Thus the ground for divorce in this case would not have accrued until October 18, 1983. That is not to say, in a proper case, that the ground could not have accrued prior to the filing of the complaint, or even after the filing of the complaint but prior to the date of trial; or that evidence of intent cannot be presumed from the facts. Our abundant experience with the willful malicious desertion and separation ground (201(a)(1)) in respect to intent and filing of the complaint will guide us in that respect.

I believe the great difficulty the legislature has had in enacting this ground (§ 201(d)), particularly in establishing any period less than three years, in providing for counsel-ling under certain circumstances, and requiring proof of irretrievable breakdown when required by the court, manifest a clear intent that pro forma findings and coincidental separations will not suffice to establish the separation required by this act.

In the House and Senate hearings, debate on section 201(d) was the most involved, heated and controversial of all the debates involving the divorce code. It became the lynchpin of the code and to convince the majority of the house, after several failing votes and amendments, to accept a unilateral ground, the time of separation had to be increased from one year to three years. The vote for acceptance was 106 to 93. In the Senate, an amendment to include the three years separation unilateral ground was defeated. In order to obtain Senate acceptance, an amendment was offered to require a hearing, if requested, and a judicial determination that the marriage was irretrievably broken as well as a separation for three years. The Senate adopted this amendment,, which is the present form of section 201(d) by a vote of 26 to 24.

The intent of the unilateral proposal, while not specifically spelled out in the statute, can be ascertained by explanations put forth by Representative Scirica, the primary proponent of the Divorce Code of 1980, during the debate on the two year Cunningham amendment, a compromise to overcome failure of passage of a one year separation period. -The House Journal Report of the debates (Rounick, Pennsylvania Matrimonial Practice, Part 3, (1983), Appendix B, p. 100) details the following statement by Mr. Scirica:

The unilateral provision simply requires that the parties live separate and apart for two years, and it represents a conservative but workable approach to divorce reform. If we adopt this bill, it means that we will have adopted an objective test for the break down of the marriage; that is, the marital state has disintegrated to the point where the parties have not lived together for a significantly lengthy period of time, (emphasis added)

While in final form, the period was three years, the rationale remains.

Thus it is abundantly clear that the separation must be evidence of marital breakdown (disintegrated) and as such, cannot be a benign separation for the purpose of obtaining work, schooling or service to our country. If mere separation was the basis, then the underlying object of the amendments, which was to prevent divorce on demand, would have been frustrated and the legislative will thwarted. See Rounick, Pennsylvania Matrimonial Practice, supra pp. 29-209.

Additionally, social and employment conditions in this state are such that increasing numbers of our citizens are voluntarily leaving the marital home for employment purposes in other states and countries, or to take advantage of opportunities offered by the armed forces. It is incumbent on this Court to make clear what is contemplated in law by the separation requirement of section 201(d).

Our most recent cases interpreting section 201(d), while focusing on the legislative intent and narrowing in on a judicially defined definition in the absence of a statutory one, have not specifically addressed this issue. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), a panel of this Court held that isolated acts of sexual intercourse during a three year separation period did not defeat actions for unilateral divorce. In searching for a definition, the panel draws analogy with our decisions in cases involving desertion grounds, (formerly 23 P.S. § 10(d) now 23 P.S. § 201(a)(1)), to ascertain a definition of cohabitation, “living or dwelling together.” Totino v. Totino, 176 Pa.Super. 108, 106 A.2d 881 (1954). Similarly, while recognizing that the desertion ground at section 201(a)(1) requires malice, and has attached to it the requirement that the complaining spouse be innocent and injured, neither of which are elements in the unilateral separation ground at section 201(d), the conversion of a non-actionable separation to one which gives rise to an action of divorce must be preceded by proof of intent to abandon marital cohabitation before the time begins to run for calculating the one year desertion (§ 201(a)(1)) or the three year separation (§ 201(d)) ground. Although there must be concurrence of intent to desert and absence (from cohabitation) to establish desertion as a grounds for divorce, it is not necessary that intent to desert must arise precisely at the time of separation. Ganunis v. Ganunis, 201 Pa.Super. 222, 192 A.2d 236 (1963). Even if separation is consensual, it ripens into desertion when one spouse makes it clear that under no circumstances will he or she join the other. Id. Where separation was at first voluntary and without intent to abandon the marriage, the statutory period for desertion (here, separation) could not begin to run until there was conjoined with the physical separation of the parties the other necessary ingredients, intention to abandon the marriage or an irretrievable breakdown of the marriage. See Jablonski v. Jablonski, 188 Pa.Super. 337, 146 A.2d 813 (1959) affirmed 397 Pa. 432, 155 A.2d 614 (1959). Our most recent case, McBride v. McBride, 335 Pa.Super. 296, 484 A.2d 141, 143 (1984) deals with a separation compelled initially by a consensual protection from abuse order, and rightfully this Court held such a separation would run from the time of that order, despite appellant’s contention it was consensual. There, the court held (Wieand, J.) “The no-fault divorce provision does not require that the parties living separate and apart be the result of a voluntary decision reached and agreed to by both parties; and this Court will not rewrite the statute to impose such a requirement.”

In that case, the evidence was clear that there was intent to abandon marital cohabitation by the husband, and that the marriage was irretrievably broken, for a period exceeding three years. Clearly, that is not the case here, where the separation, voluntary in its inception, contemplated maintaining the marriage and resuming marital cohabitation as soon as conditions permitted. The intent to abandon marital cohabitation within the meaning of the act was not manifested for a period of three or more years prior to the petition or hearing on the divorce.

The position to which I would ascribe, as intended by the legislature in regard to § 201(d), is clearly delineated in 24 AmJur2d, Divorce and Separation § 148, and its numerous annotations.

§ 148. What constitutes.

“Separation,” as a ground for divorce, means a physical separation of the parties, with the requisite intent, which is sometimes referred to as an intent to sever the marital status or an intent not to resume marital relations. In addition, some statutes prescribe the additional element that the separation must be “beyond any reasonable expectation of reconciliation.” If the parties do not live under the same roof but have sexual relations from time to time, it has been held that a divorce on the ground of separation should be denied. There is a conflict of authority as to whether the separation must have been by mutual consent.
If the husband leaves the wife for some temporary purpose, and without any indication that his absence is to be permanent, there is no separation in contemplation of law, and no intent to separate. For example, the husband’s departure is not a separation where his announced purpose is to engage in business, establish a practice, or seek employment elsewhere, or if he is inducted into the armed forces. But if the parties have separated for some temporary purpose and without any intent to effect a permanent separation, the requisite intent may be formed during the temporary separation, and the period of separation, as a ground for divorce, will begin to run on the date the intent is asserted, (emphasis added) (footnotes omitted)

Also see Otis v. Baham, 209 La. 1082, 166 A.L.R. 494, 26 So.2d 146 (1946).

There appears to be no question that the appellee has no intent to reconcile, and that, from his view point, the marriage is irretrievably broken. I would not contend that this finding involves a time factor which must be concurrent with the separation, but to hold that the marriage may be dissolved when the period of separation and living apart, as calculated above, is less than three years, is tacitly approving, as a ground for divorce, irretrievable breakdown (unilaterally declared), which is not contemplated by the statute. Nor can the divorce be granted because the parties have been living separate and apart for three years — it must also appear that the marriage be irretrievably broken. McBride, supra.

For all of the above reasons, I believe the lower court and the master committed an abuse of discretion in dealing with the separation on its physical level, without determining when in fact, it became one with intention to abandon the marriage. I, therefore, would vacate the decree of divorce.

      . An H-l classification is known as a temporary worker status. Immigration and Nationality Act of June 27, 1952, Pub.L. No. 82-144, as amended, § 245, 8 U.S.C. § 1101:

        (H) an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability; or (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country; or (iii) who is coming temporarily to the United States as a trainee; and the alien spouse and minor children of any such alien specified in this paragraph if accompanying him or following to join him.

      . IMMIGRATION AND NATIONALITY § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence
      (a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
      (b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference or nonpreference visas authorized to be issued under sections 202(e) or 203(a) [8 USCS §§ 1152(e) or 1153(a) ] within the class to which the alien is chargeable for the fiscal year then current.
      (c) The provisions of this section shall not be applicable to (1) an alien crewman; (2) an alien (other than an immediate relative as defined in section 201(b) [8 USCS § 1151(b) ] ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status; or (3) any alien admitted in transit without visa under section 212(d)(4)(C) [8 USCS § 1182(d)(4)(C)]. (June 27, 1952, ch. 477, Title II, subch. 5, § 245, 66 Stat. 217; Aug. 21, 1958, P.L. 85-700, § 1, 72 Stat. 699; July 14, 1960, P.L. 86-468, § 10, 74 Stat. 505; Oct. 3, 1965, P.L. 89-236, § 13, 79 Stat. 918; Oct. 20, 1976, P.L. 94-571, § 6, 90 Stat. 2705.)

      . In Elkins, the Supreme Court held that federal law does not prevent the establishment of a domicile in this country by nonimmigrant aliens with a G-4 status whose visas do not require them to maintain a permanent foreign residence. The Court specifically did not decide the question of whether H-l nonimmigrant aliens whose visas do require permanent foreign residences to be maintained may establish a domicile in this country.

      . The majority would interpret “separate and apart” purely as a function of time and not of intent. While it does not propose to deal with the statutory meaning of separate and apart, it avoids this by a general finding that there has been an irretrievable breakdown for a period of at least three years prior to filing the complaint. I do not believe this is possible as we must first determine when the intent to separate for dissolution purposes occurred, and only then can the time be calculated to establish the irretrievable breakdown.

      . Code § 20-91 provides in pertinent part:
      A divorce from the bond of matrimony may be decreed:
      (9) On the application of either party if an when the husband and wife have lived separate and apart without any cohabitation and without interruption for three years.