author: DEL SOLE, Judge:

text:
    639 A.2d 1185
    Rudolph PIZZONIA and Maryann Pizzonia, H/W, Appellants, v. COLONIAL MOTORS, INC., Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1993.
    Filed Feb. 24, 1994.
    Reargument Denied April 25, 1994.

      Lenard A. Cohen, Philadelphia, for appeüant.
    Charles W. Craven, Phüadelphia, for appeUee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellants were injured when their car collided with one driven by an unlicensed, uninsured operator. Appellee, Colonial Motors, Inc., which is in the business of selling motor vehicles and authorized to issue license plates, sold the vehicle to the unlicensed, uninsured driver the previous day. At the time of the sale, Appeüee did not confirm the existence of liabüity insurance.

Appellants contended that Appellee violated 75 Pa.C.S.A. § 1318, which requires that agents authorized to issue vehicle registration verify financial responsibility, and 75 Pa.C.S.A. § 1574, which prohibits vehicle owners from allowing an unlicensed driver to operate their vehicles. The trial court sustained Appellee’s demurrer and dismissed the complaint. The issue here is whether Appellants have stated a cause of action against Appellee.

We agree with the trial court that prior case law holds the failure to confirm the existence of insurance by an agent authorized to issue auto registration does not state a cause of action in negligence against the agent for injuries arising from an auto accident involving the uninsured vehicle or driver. However, we disagree with the proposition that the failure to properly confirm insurance coverage allows Appellee to escape all responsibility.

We determined in Lieberman v. Abat’s Auto Tag Service, 344 Pa.Super. 350, 496 A.2d 831, 832 (1985) that the “injury” was “not the physical harm from the accident but the inability to recover medical expenses under the No-fault Act.” In Lieberman, the Tag Service had issued a registration and license plate to Mr. Brown without proof of insurance coverage. Brown struck and injured Lieberman. Lieberman, in his suit, alleged that his injuries were a direct result of the negligence of Abat’s Tag Service. This court held that the tag service could not be held responsible under a negligence theory for the injuries, but could be held liable for plaintiffs inability to recover insurance benefits as a result of the issuing agent’s breach of its statutory duty. Id., 496 A.2d at 832-33.

We affirmed the dismissal of Lieberman’s action because of his failure to claim that he was “unable to recover through recourse to the No-fault Act.” Id. Judge Spaeth, in his concurring opinion in Lieberman explained that the person who is injured by an uninsured motorist, who was negligently issued temporary cards and plates, has suffered no damage from the failure to confirm coverage because the legislature had provided an alternative means through the Assigned Claims Plan by which the uninsured victim of an uninsured motorist had access to basic loss benefits. This rationale was followed in Capuzzi v. Heller, 418 Pa.Super. 550, 614 A.2d 775 (1992). In Capuzzi, the appellant alleged he was entitled to recover damages from VAT which provided temporary vehicle registration to an uninsured driver in violation of Pennsylvania regulations. We held that an issuer’s liability did not extend beyond the responsibility to ensure that the injured party had a source available to compensate for basic loss benefits under the No-Fault Act. We refused to impose a further duty on issuing agents “to pick up where first party benefits leave off, and become in effect a provider of liability insurance.” Id., 614 A.2d at 778. We held “that the duty owed by an issuer of a temporary registration to one who has been injured by the issuer’s neglect is limited to the extent that the injured party is unable to recover first party benefits as provided in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq.”

The duties of agents are described in 75 Pa.C.S.C.A. § 1318. It provides:

(a) Verification of financial responsibility. — An agent of the Department of Transportation who is authorized to issue on behalf of the department a vehicle registration renewal or temporary registration shall be required to verify financial responsibility prior to issuance.
(b) Proof. — Proof of financial responsibility shall be verified by examining one of the following documents:
(1) an identification card as required by regulations promulgated by the Insurance Department.
(2) The declaration page of an insurance policy.
(3) A certificate of financial responsibility.
(4) a valid binder of insurance issued by an insurance company licensed to sell motor vehicle liability insurance in Pennsylvania.

Having been authorized by the Commonwealth to issue title registrations for profit, an issuing agent may not ignore the mandates of § 1318 which requires that it verify financial responsibility at the time it issues registration. An agent must exercise reasonable effort to determine financial responsibility. When an issuing agent has done what is required by statute, an injured party is not prevented from recovering at least the minimum amount of insurance that is required by law. If the issuing agent neglects to verify financial responsibility, a person in Appellants’ position may suffer unreimbursed loss as the result of the uninsured driver’s negligence.

In the instant ease, Appellee, Colonial Motors merely obtained an “insurance disclaimer” from the uninsured driver in direct violation of 75 Pa.C.S.A. § 1318. In the event it is determined that the uninsured driver is responsible for Appellants’ damages, and the injuries remain unpaid due to the Appellee’s failure to verify the driver’s financial responsibility, Appellee is accountable for the unreimbursed damages that would have been paid by an insurer had there been in effect a policy of insurance with the minimum required coverage. Also, to the extent that the Appellants may be reimbursed under their own policy’s uninsured provisions, their carrier shall have a right of subrogation against the issuer for the minimum required limits. Appellants’ cause of action would not accrue until the liability of the other driver is determined and the loss of insurance reimbursement is established.

We also agree with the trial court’s determination that there was no violation of 75 Pa.C.S.A. § 1574. Nothing in the statute prohibits an unlicensed person from owning an automobile. Since the sale to an unlicensed driver is not a violation, no cause of action exists.

Order affirmed.


source: Caselaw Access Project

author: SAYLOR, Judge:

license: Public Domain

text:
    639 A.2d 1187
    Murray H. WITCHER, Jr., Appellee, v. Phyllis J. Herrmann WITCHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1994.
    Filed April 4, 1994.

      Phyllis J. Herrmann Witcher, pro se.
    Eugene J. Malady, Media, for appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   SAYLOR, Judge:

Defendant, Phyllis Herrmann Witcher (Wife), appeals from the order of the Court of Common Pleas of Delaware County awarding equitable distribution to her in the amount of sixty percent of the marital estate and denying her request for an award of alimony and an award of counsel fees against Plaintiff, Murray H. Witcher (Husband). Finding no abuse of discretion or error of law, we affirm.

Husband and Wife were married on April 8, 1961. Husband, age 55, is a graduate of the United States Naval Academy with a degree in engineering. Wife, age 55, is a college graduate with some experience working as a school teacher. Husband was in the United States Navy until 1967, when he began working for E.I. DuPont Company. Two children were born of the marriage; both children were adults when the parties separated on November 20, 1986. Husband is currently employed as a consultant at DuPont with an annual salary of approximately $61,000.00. Wife is not employed at a job that pays her compensation; however, she devotes her time to volunteer work, and is particularly involved in a non-profit organization which addresses divorce issues across the country. Wife’s earning capacity would range from $20,000.00 to $25,000.00 annually, if she were to work as a secretary or a teacher.

On July 10, 1987, Husband filed a complaint for divorce, seeking a no-fault divorce under 23 Pa.C.S.A. §§ 3301(c) and 3301(d), and requesting equitable distribution of the parties’ marital property. Wife initially filed an answer and counterclaim admitting all of the factual allegations and admitting the allegations in support of Husband’s request for equitable distribution, but denying the allegations in support of Husband’s request for divorce. Wife also added a request for alimony, alimony pendente lite, attorneys fees, and costs and expenses. Additionally, Wife sought the award of several life insurance policies owned by the parties. Wife later amended this counterclaim to include a request for a fault divorce under 23 Pa.C.S.A. § 3301(a)(1), (2) and (3). ■

A trial was held in January, 1992, at which time the trial court denied and dismissed Wife’s counterclaim for divorce on the fault grounds of indignities, adultery and desertion. The trial court bifurcated the issue of equitable distribution from the divorce proceeding, and a divorce decree was subsequently entered, granting Husband’s request for a no-fault divorce. Wife appealed the grant of the decree, which was subsequently affirmed by this court. Wife then filed an application requesting reargument/reconsideration en banc, which was denied by this court. Wife then filed a petition for allowance of appeal, which is currently pending before the Pennsylvania Supreme Court.

Following this court’s affirmance of the order granting the divorce decree, the trial court entered an order disposing of the collateral issues which Wife had raised in her answer and counterclaim to Husband’s complaint in divorce. The trial court awarded sixty percent of the marital assets to Wife and awarded forty percent to Husband. Specifically, the trial court ruled that Wife was to receive the marital residence and its contents, and 48.85% of Husband’s Navy pension. Husband was to receive 51.15% of his Navy pension, along with his DuPont pension, the DuPont stock in his name, and a DuPont savings and investment plan. Husband also was to receive the life insurance policies, a 1985 automobile and a pop-up trailer. Thus, Wife received a portion of the marital assets having an assigned value of $212,820.00, and Husband received a portion of the marital assets having an assigned value of $141,880.00. The trial court denied Wife’s request for alimony and for an award of counsel fees against Husband. Wife then brought this appeal.

The trial court points out that although Wife served copies of documents entitled “Exceptions of Decision of Court in Equitable Distribution” and “Petition for Rehearing in Equitable Distribution” upon the trial court and Husband’s counsel, Wife has failed to file a Motion for Posh-Trial Relief, as required by Pa.R.C.P. 227.1 and Pavie v. Pavie, 414 Pa.Super. 294, 606 A.2d 1207 (1992) (following a de novo hearing before the trial court on the issue of equitable distribution, a party seeking review of the trial court’s action must first file a Motion for Post-Trial Relief.). Therefore, Wife’s claims regarding equitable distribution are deemed waived; however, in the interest of judicial economy, we will address Wife’s arguments, which we find to be meritless.

Wife raises several novel arguments concerning the constitutionality of Pennsylvania’s no-fault divorce statute. She claims that to allow evidence of marital misconduct to be heard in regard to the award of alimony, but not in regard to equitable distribution, is a violation of equal protection and due process principles. She also alleges that the trial court abused its discretion in bifurcating the divorce proceeding from equitable distribution, contending that since the court had heard fault evidence in connection with alimony issues, she should have been allowed to litigate her entitlement to a divorce on fault grounds. Wife further argues that the trial court abused its discretion in “ignor[ing] principles of law, case decision, facts of the case, ... manifest need, and fairness in adjudication in equitable distribution,” which resulted in hardship to Wife, the dependent spouse. Finally, Wife claims that because the trial court refused to award her a portion of Husband’s salary and DuPont pension, she has had to obtain public assistance; therefore, the state has an interest in all of Husband’s sources of income which were established during the marriage, and Wife cannot be deprived of such “property” interests without an evidentiary hearing. We find all of these arguments to be meritless.

Wife’s constitutional arguments address the fact that under the Divorce Code, 23 Pa.C.S.A. § 3101 et seq., marital misconduct is a factor which the trial court may consider in awarding alimony under section 3701, but that under section 3502, such misconduct may not be considered by the trial court for equitable distribution of marital property. Furthermore, under section 3301(e), the trial court is not required to hold a hearing on any other grounds if the grounds for divorce have been established under the no-fault provisions of 23 Pa.C.S.A. § 3301(d). Wife claims that these sections violate the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

Wife is essentially asking us to hold that she, as the dependent spouse, has a fundamental right to continue to receive the economic benefits of her marriage to Husband, without taking into account her own earning capacity or independent sources of income, following the parties’ divorce. Additionally, Wife argues that to permit Husband to obtain a no-fault divorce without allowing her to introduce evidence of Husband’s fault in regard to equitable distribution, or any other matter, is tantamount to depriving her of a fundamental right without a hearing, and is therefore a violation of her due process rights. We cannot agree.

First, we fail to find that Wife has been deprived of a fundamental right. Aside from ordering alimony, child support and equitable distribution, the courts cannot impose an obligation on an individual to continue to assume all the responsibilities of the marriage once the marriage has been terminated. The Pennsylvania legislature has provided for equitable distribution, as well as the award of alimony and child support, in appropriate cases to ensure that dependent spouses and their children are provided for after the termination of the marriage. In this case, the trial court considered factors such as: Wife’s earning capacity; the availability of significant non-marital assets to Wife, including stocks and securities inherited from her mother, as well as a condominium purchased with funds from her mother’s estate; and the absence of any dependent minor children. Thus, the trial court carefully considered Wife’s needs and sources of income when it fashioned its order. No unconstitutional deprivation has occurred.

Furthermore, because Wife has not been deprived of any benefits to which she is statutorily entitled, her claim that she is entitled to an evidentiary hearing, according to the principles espoused in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), is meritless. Notwithstanding the fact that the trial court is not required to hold a hearing on any other grounds in no-fault divorce cases, 23 Pa.C.S.A. § 3301(e), Wife has, in fact, received a hearing on fault issues in connection with the issue of alimony during the divorce proceeding. The trial court, after hearing this evidence of fault, determined that Wife had not established the statutory elements which would entitle her to a divorce on fault grounds, and therefore, it granted Husband’s request for a no-fault divorce. Wife has received all the process which is due to her. Accordingly, the fact that Wife was denied a divorce on fault grounds does not constitute legal error by the trial court.

Wife’s contention that sections 3502 and 3701 are a violation of the equal protection and due process clauses is also merit-less. Apparently, Wife is seeking recompense for Husband’s alleged misconduct, asserting that penalization for the marital misconduct of the obligor spouse should be one of the purposes for awarding alimony, and should also be a factor which the trial court is to consider when equitably distributing the marital property. Such an assertion conflicts with the legislative intent of the Divorce Code, as expressed in 23 Pa.C.S.A. § 3102(a):

(a) Policy. The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to:
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.

23 Pa.C.S.A. § 3101(a)(3), (emphasis added); see also, Perlberger v. Perlberger, 426 Pa.Super. 245, 261, n. 17, 626 A.2d 1186, 1195, n. 17 (1993):

The legislature has attempted to account for human nature in the Divorce Code. The Commonwealth’s policy eschews vindication of private rights and punishment for marital wrongs.... For practical purposes, however, this policy is difficult to implement; to some extent one party can delay or control the proceedings. Marriage should neither be entered or exited lightly, but if one party does desire to be free from the marital bond, the other party often has the opportunity, and the legal back-up, to exact a lopsided settlement or engage in endless delay tactics. One party, equipped with a legal arsenal, can hold the other hostage to his or her economic demands, essentially extorting a divorce settlement. The no-fault provisions were added as a detour around the adversarial justice system and the side-effects of that system — delay, conflict, discord, and mounting legal fees____ This is counter to the Commonwealth’s policy, and the antithesis of what the legislators had hoped to accomplish in enacting divorce reform.

Id.

Thus, the general philosophy of the Divorce Code has been to accomplish the dissolution of a marriage in a manner that recognizes the family’s prior existence as both an economic and social unit, and that emphasizes future welfare of all family members, instead of in a manner that identifies and punishes the guilty party. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), affirmed 498 Pa. 570, 449 A.2d 1378 (1982). Wife is challenging the philosophy of a legislative enactment, and any remedy sought in connection with this argument lies with the legislature.

Finally, with regard to Wife’s claims that the trial court abused its discretion in denying her alimony and counsel fees, we can reverse such an order only when the trial court has abused its discretion by failing to follow the proper legal procedure or by misapplying the law. Uhler v. Uhler, 406 Pa.Super. 414, 594 A.2d 688 (1991); Williamson v. Williamson, 402 Pa.Super. 276, 586 A.2d 967 (1991). Our standard of review in equitable distribution matters is the same. Hill v. Hill, 401 Pa.Super. 183, 584 A.2d 1040 (1991).

It is clear from the record that the trial court followed the proper legal procedures for equitable distribution of marital property and for determining whether to award alimony and counsel fees. The law was correctly applied; the fact that Wife does not agree with the law does not nullify the trial court’s decision. Accordingly, we affirm the order of the trial court.

Order affirmed.


author: TAMILIA, Judge:

text:
    639 A.2d 1191
    Edward T. GLOCK, Jr., Appellant v. The COCA-COLA COMPANY and the Philadelphia Coca-Cola Bottling Company and Owens-Illinois, Inc. and Real Pizza, Inc. Edward T. GLOCK, Jr. The COCA-COLA COMPANY and the Philadelphia Coca-Cola Bottling Company and Owens-Illinois, Inc. and Real Pizza, Inc. Appeal of OWENS-ILLINOIS, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1993.
    Filed April 4, 1994.

      Alan L. Spielman, Philadelphia, for appellant (at 1007) and appellee (at 1226).
    E. Parry Warner, Philadelphia, for Owens-Illinois, appellant (at 1226) and appellee (at 1007).
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Cross-appellants, Edward T. Glock, Jr., and Owens-Illinois, Inc. (O-I), appeal the judgment entered in this matter following the trial court’s Order of February 4, 1993. On that date, the court denied plaintiffs motion to mold the verdict to $83,333, but did add delay damages of $18,344.86 to the $25,000 molded jury verdict for plaintiff, making the total verdict $43,344.86. Additionally, the court denied O-I’s post-trial motion for entry of judgment.

The basic underlying facts are not in dispute and have been accurately summarized by the trial court.

The instant case was filed by plaintiff in 1984 asserting negligence and strict liability causes of action against four defendants arising out of personal injuries sustained by plaintiff when he was struck in the eye by an exploding soda bottle. Prior to trial the plaintiff settled his claims against three of the defendants, Coca-Cola Company, Philadelphia Coca-Cola Bottling Company, and Real Pizza, Inc., by executing joint tortfeasor releases with each defendant. Plaintiff executed the release in consideration for the payment by Coca-Cola Company of $500,000.00, by Philadelphia Coca-Cola Bottling Company of $70,000.00, and by Real Pizza, Inc. of $18,000.00. The case therefore proceeded to trial against the only remaining defendant, Owens-Illinois. Pri- or to trial, the plaintiff withdrew his claims of negligence against the defendant, Owens-Illinois, and proceeded on the issues of strict liability and punitive damages. Prior to trial the defendant withdrew its claims for contribution, on the basis of the execution of the aforesaid releases. On November 8, 1991, after eleven days of trial, the jury returned a verdict in favor of plaintiff in the amount of $250,000.00, but refused to award punitive damages against the defendant, Owens-Illinois. In accordance with the plaintiffs requested jury instructions and suggested verdict sheet, this Court submitted a jury interrogatory requesting the apportionment of comparative fault of the four defendants. This request was in strict conformity with the holding of Walton v. Avco Corporation, [383] Pa.Super. [518], 557 A.2d 372 (1989) which required the apportioning of fault among strictly liable defendants. The jury answered this interrogatory by holding defendant Coca-Cola Company 80% responsible, defendant Philadelphia Coca-Cola Bottling Company 10% responsible, and defendant Owens-Illinois 10% responsible.

(Slip Op., Di Bona, J., 5/27/93, pp. 1-2.)

The issue presented by plaintiff/appellant Glock as to the applicability of Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992), was resolved against Glock by the trial court and must be resolved against appellant by this Court. By applying Walton, plaintiff seeks to obtain a pro-rata share of the jury verdict of $250,000 as opposed to 10 per cent liability assessed to O-I which alone, of the four defendants, did not settle. Glock additionally would limit the pro-rata molding of the verdict to three defendants who were found liable by the jury and not the four who participated in the settlement. The effect would be to provide payment of the pro-rata amount as to O-I of 33/6 per cent of the $250,000 (plus Pa.R.C.P. 238 damages as to the O-I share) rather than the 10 per cent awarded by the jury.

This issue turns on whether Walton may be given retroactive application as the case was tried and decided on law that preceded Walton, which permitted the jury to determine the respective share of liability of the various defendants once strict liability was adjudicated. Walton reversed this procedure and held that once the issue of strict liability was resolved against several defendants, the award of damages against them would be apportioned on a per capita or pro rata basis, as a matter of law.

Appellant Glock maintains that pursuant to Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), any decision that changes a rule of law entered during the pendency of a case up through the appellate process must be applied to that case. Cross-appellant O-I maintains that Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), restricted Kuchinic to those cases, civil or criminal, where proper and timely objections had preserved the issue at the time of trial and not, as here, where the issue is raised for the first time on appeal. A final, more definitive analysis of the retroactive application of a new principle was expounded by the Supreme Court in Blackwell v. Com. State Ethics Comm., 527 Pa. 172, 589 A.2d 1094 (1991). There, the question posed by the Commonwealth, which argued against retroactivity of the Supreme Court ruling, was the negative effect it would have on a myriad of cases which appeared before numerous boards and commissions. The Court responded:

We, however, believe that our decision here limiting application of Blackwell II to the instant appeals and all other pending cases wherein the issue of validity of Section 4(4) was properly raised and preserved eliminates these concerns.

Id. at 186, 589 A.2d at 1101. In support of that holding, the Court quoted the following language from Cabeza:

[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Cabeza, supra 503 Pa. at 233, 469 A.2d at 148 (emphasis added).

Appellant’s reliance on Kuchinic in the face of Cabeza and Blackwell is not convincing and bolsters the efficacy of Justice Nix’ dissent in Cabeza which pointed out that a sweeping rule of retroactive application is unsupported in Pennsylvania cases. “ ‘Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis.’ August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981), citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).” Cabeza, supra 503 Pa. at 232, 469 A.2d at 148 (Nix, Justice dissenting). The other factor which heavily weighs on retroactivity is whether the charge is constitutionally compelling (as in Blackwell). Where, as here, the effect on private litigation is minimal, retroactive application without proper preservation of the issue in this case would simply provide a windfall to plaintiff.

As to the reduction of the comparative damage award of the jury against defendant O-I, which argues that the award should be reduced to $0 because the amount of the settlement agreement far exceeds the jury verdict, we agree with the trial court that the amount of the agreement has no bearing on O-I’s liability for damages pursuant to the jury verdict. As pointed out by the trial court in its Opinion:

In Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416 (1991) the Superior Court reviewed the holding of Charles v. Giant Eagle, [513 Pa. 474, 522 A.2d 1 (1987)], and compared the Uniform Contribution Among Tortfeasors Act thereto. The Superior Court held:
‘The Supreme Court, in Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987), held that a non-settling joint tortfeasor is not relieved of responsibility for payment of a proportionate share of damages where the consideration paid by the settling tortfeasor exceeds his or her proportionate share of damages as determined by the jury and the release provides for reduction of the verdict by the pro rata share of the settling joint tortfeasor.’

402 Pa.Super. 101 at 106, 586 A.2d 416 at 419.

In addition, the Court held:

‘While we confess experiencing some difficulty in construing the provisions of the UCATA and the holding of the Supreme Court in Giant Eagle, neither the holding of the Court [nor] its salutary effect in promoting settlements can be questioned:
Contrary to the result urged by appellees, where a release has been executed, the verdict is reduced only by the proportionate share of the settling tortfeasor. The actual amount of the release, if it exceeds this sum, is of no consequence in the satisfaction of the judgment of the remaining defendants. The fact that the plaintiff may receive a larger dollar amount in damages than that fixed by the jury does not militate against such an approach. Charles v. Giant Eagle Markets, supra, 513 Pa. at 479, 522 A.2d at 3 (emphasis supplied)’

402 Pa.Super. 101 at 110, 586 A.2d 416 at 421.

(Slip Op., DiBona, J., 5/27/93, p. 4.)

The trial court correctly applied the law espoused in the en banc Opinion of Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416 (1991), alloc. den., 529 Pa. 650, 602 A.2d 860 (1992), as quoted above. Moran is precisely on point and controls our decision here. Contrary to O-I’s position, this panel is not able to reevaluate or reinterpret Moran to harmonize it with what it believes to be the holding of Charles and section 8326 of the UCATA. That is not a function of a panel of this Court and if a change in interpretation of Moran is to be achieved, it lies with the Supreme Court which passed on the opportunity to do so when it denied allocatur on Moran almost five years after its decision in Charles.

For the above reasons, we affirm the judgment of the trial court as to the award of damages to appellant Glock, and we affirm the Order of the trial court denying appellant Glock’s request to mold the verdict. We also affirm the Order of the trial court denying the motion of cross-appellant O-I to reduce the judgment in favor of Glock to zero.

Jurisdiction relinquished.

      . Throughout this Opinion in the interest of clarity, appellant, Edward Glock, will be referred to as plaintiff and Owens-Illinois as defendant.


author: WIEAND, Judge.

text:
    639 A.2d 1194
    COMMONWEALTH of Pennsylvania v. Sidney WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1994.
    Filed April 5, 1994.

      John P. Joergensen, Philadelphia, for appellant.
    Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge.

Sidney Wilson was tried by jury and was found guilty of third degree murder and possession of an instrument of crime. Post-trial motions were denied, and Wilson was sentenced to serve concurrent terms of imprisonment of not less than six (6) years nor more than twelve (12) years for third degree murder and not less than one (1) year nor more than five (5) years for possessing an instrument of crime. On direct appeal from the judgment of sentence, the sole issue raised by Wilson is whether the trial court erred by denying a defense request for a jury instruction on self-defense. After careful review, we reverse and remand for a new trial.

At trial, the Commonwealth presented evidence which established that, on November 28, 1989, at or about 4:30 p.m., appellant drove to the intersection of Cumberland and Garnet Streets in Philadelphia, where Stacey Sharpe, Owen Snipe and Keenan Evans were standing and talking. Appellant approached the three men and asked, “Who is Stacey?” When Sharpe identified himself, appellant pulled out a .38 caliber revolver, put it to Sharpe’s chest and ordered Sharpe to “give it all up.” Sharpe raised his hands, and appellant took from him what appeared to be money. Thereafter, Sharpe attempted to take the gun away from appellant. A brief struggle ensued, and when appellant began to run away, Sharpe pursued him. Appellant turned and shot Sharpe in the chest, inflicting a fatal wound.

A different version of events was presented by appellant, who testified in his own defense. Appellant said that, on the morning of the shooting, he had taken his friend’s car and was driving around in North Philadelphia. During these travels, appellant was told that he could purchase cocaine on the comer of Cumberland and Garnet Streets from a man named Stacey. Appellant testified that he went to that comer and asked the men standing there, “Who is Stacey?” In response, Sharpe identified himself and asked appellant “how much do you need?” At this point, according to appellant, Owen Snipe told Sharpe not to serve appellant and punched appellant in the face. Appellant punched Snipe in return, after which Sharpe pulled a gun from his jacket pocket. Appellant grabbed for the gun and he and Sharpe began to struggle for possession. As they continued to straggle, the gun was discharged into the air. The events which followed were described by appellant as follows:

Then we began to tussle even harder. I then grabbed the handle of the gun and flipped it around and I snatched it. I had the gun in my hand. Stacey snatched it back, tried to snatch it back anyway. We were tussling for the gun. While we were tussling for the gun, it was like a tug of war. I was pulling and pulling and [either] I tripped on the curb or he got tripped over my feet but I fell. When I fell, I fell hitting my elbow and the gun went off.

Appellant testified further that when the gun discharged, Sharpe was standing over him, attempting to wrestle the gun away from him. After Sharpe was shot, appellant ran back towards the car, hearing two more gun shots as he fled.

At the conclusion of the trial court’s instructions to the jury, defense counsel requested an instruction on self-defense. The trial court refused the requested instruction, holding that it was not appropriate under the evidence presented. On appeal, it is argued that the trial court’s refusal to instruct on self-defense was error. Appellant contends that his own testimony was sufficient to create a self-defense issue. Although he concedes that his testimony indicated an accidental killing, he argues that nevertheless he was entitled to a jury instruction on self-defense “because the shooting occurred at a time and under circumstances that would have permitted a reasonable person to use deadly force to protect himself.” The Commonwealth, for its part, takes the position that appellant’s defense was that the killing was accidental, without any evidence that appellant had used the gun to protect himself.

“While the jury must serve as the sole finder of fact, the trial court has a duty to frame legal issues for the jury and instruct the jury on the applicable law.” Commonwealth v. Hart, 388 Pa.Super. 484, 492, 565 A.2d 1212, 1216 (1989). “A jury instruction given by the trial court will be upheld so long as it ‘sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.’ ” Commonwealth v. Calderini, 416 Pa.Super. 258, 266, 611 A.2d 206, 210 (1992), quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990). “A trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is [requested] and the evidence presented at trial.” Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975). See also: Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, 298 (1990); Commonwealth v. Schaller, 493 Pa. 426, 430, 426 A.2d 1090, 1092 (1981). Nevertheless, “ ‘[a] defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor.’ ” Commonwealth v. Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992), quoting Commonwealth v. Weiskerger, 520 Pa. 305, 312-313, 554 A.2d 10, 14 (1989).

In Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991), the Superior Court, sitting en banc, reviewed extensively the requirements that a defendant must meet in order to be entitled to a jury instruction on self-defense. The Court observed:

Before the issue of self-defense may be submitted to a jury for consideration, a valid claim of self-defense must be made out as a matter of law, and this determination must be made by the trial judge. Such claim may consist of evidence from whatever source. “Such evidence may be adduced by the defendant as part of his case, or conceivably, may be found in the Commonwealth’s own case in chief or be elicited through cross-examination.” Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1974) (similarly discussing the type of evidence necessary to place in issue a defense of intoxication). However, such evidence from whatever source must speak to three specific elements for a claim of self-defense to be placed in issue for a jury’s consideration.
Thus, as provided by statute and as interpreted through our case law, to establish the defense of self-defense it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not violate any duty to retreat or to avoid the danger. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Cropper, supra [463 Pa. 529, 345 A.2d 645] (1975).

Commonwealth v. Black, 474 Pa. 47, 52, 376 A.2d 627, 630 (1977). If there is any evidence from whatever source that will support these three elements then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.

Our case law makes it crystal clear that the charge of self-defense must be given upon request where the jury would have a possible basis for finding it. See Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).
While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding. Commonwealth v. Black, supra, 474 Pa. at 53, 376 A.2d at 630. See also Commonwealth v. Walley, 466 Pa. 363, 367, n. 2, 353 A.2d 396, n. 2 (1976); Commonwealth v. Cropper, 463 Pa. 529, 537-538, 345 A.2d 645, 649 (1975).
Thus, if there was evidence which would have supported the claim of self-defense, it was for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge. Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975).
Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980); in accord, Commonwealth v. Bailey, 324 Pa.Super. 236, 471 A.2d 551 (1984) and Commonwealth v. Maione, 382 Pa.Super. 47, 554 A.2d 939 (1989). This is so even though the evidence of self-defense may appear to the trial court as not credible, for “it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced ... The fact finder is free to believe all, part, or none of the evidence.” Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

Commonwealth v. Mayfield, supra, 401 Pa.Super. at 564-565, 585 A.2d at 1070-1071.

Several cases have considered the necessity for a jury instruction on self-defense where a defendant’s testimony indicates an accidental killing. In Commonwealth v. Butler, 340 Pa. 162, 16 A.2d 7 (1940), the defendant testified that she had accidentally hit the trigger of a shotgun, causing it to discharge and kill her husband. In rejecting an argument that the jury should have been instructed on self-defense, the Supreme Court said:

At the trial there was no pretense that anything but “accidental killing” was relied on as a defense. The defendant by her own testimony claimed that the killing was an accident. It was for this reason that the learned trial court very properly omitted to charge the jury as to the law on self-defense. Furthermore, no request was made for such a charge.

Commonwealth v. Butler, supra at 166, 16 A.2d at 8.

A factual situation similar to that of the instant case was before the Supreme Court in Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980). In that case, the Commonwealth presented evidence that the defendant had pulled a gun on the victim and intentionally shot him. The defendant, however, testified that it had been the victim who had produced the gun and that it had discharged during a struggle. On appeal, the defendant argued that his trial counsel had been ineffective for failing to object to the absence of an instruction on self-defense during the court’s charge to the jury. The Supreme Court found this claim to be lacking in arguable merit, reasoning as follows:

The Commonwealth’s witnesses testified that appellant pointed the gun at the victim. Only appellant claimed the victim pointed the gun at him. He testified that as he struggled to wrestle the pistol free, it discharged. At best appellant’s explanation suggests that the killing may have been accidental. However, it also destroys the second element of self-defense; that appellant reasonably believed that he was in imminent danger of death or great bodily harm. When appellant was specifically asked upon cross-examination if he had been acting in self-defense, appellant conceded that he had not. At no time was there any testimony that appellant intentionally fired the gun in an attempt to defend himself.
The jury was presented with the possible explanation of accidental death; the judge’s charge adequately explained that a finding of not guilty of any degree of homicide was required if the jury chose to believe appellant’s story.
Clearly, appellant’s trial counsel realized that an assertion of self-defense was not supported by, nor compatible with the testimony. It would have been an empty gesture for defense counsel to object to the court’s charge.

Commonwealth v. Webster, supra at 326, 416 A.2d at 492-493 (footnote omitted).

In Commonwealth v. Terrell, 276 Pa.Super. 136, 419 A.2d 133 (1980), the Superior Court considered a claim of ineffective assistance of counsel because of counsel’s failure to request a jury instruction on self-defense. The defendant had testified that, during a struggle with the victim who had pulled a gun on him, he gained possession of the gun and then shot the victim. In rejecting the defendant’s argument, the Superi- or Court reasoned as follows:

The Commonwealth’s evidence indicated that, rather than acting to protect himself from serious injury, appellant had killed the victim without provocation. Moreover, appellant’s evidence did not show that he had acted in self-defense. Some of his testimony indicated that the killing was accidental. Some of his testimony indicated that he had intentionally shot the victim. This testimony showed that he was in control of the gun and, therefore, not acting to protect himself from danger. Thus, there was no evidence that appellant had acted in self-defense. Accordingly, the trial court need not have instructed on that defense ... and counsel was not ineffective in failing to request instructions on this defense or in failing to file post-verdict motions raising this issue.

Commonwealth v. Terrell, supra at 140, 419 A.2d at 134-135 (citations omitted).

More recently, in Commonwealth v. Mayfield, supra, the Superior Court held that a defendant who denies using deadly force in defense of himself is not entitled to a jury instruction on self-defense, because, by his own testimony, he has negated one of the elements of that defense. Id., 401 Pa.Super. at 573, 585 A.2d at 1075. The Court explained its holding as follows:

It is the specific denial of the use of deadly force for one’s own protection which precludes the claim of self-defense being put in issue. To hold otherwise, has the possibility for absurd results. For instance, a defendant could request that the jury consider self-defense while at the same time claiming a defense of mistaken identity or alibi. Even in closer cases, such as those in which the facts present a case for an accidental shooting, a request for an instruction on self-defense has been denied as being inconsistent unless the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself.

Commonwealth v. Mayfield, supra at 572, 585 A.2d at 1074 (emphasis added).

Subsequent to the decision in Mayfield, the Superior Court, in Commonwealth v. McFadden, 402 Pa.Super. 517, 587 A.2d 740 (1991), found arguable merit in a claim that counsel had been ineffective for failing to request a jury instruction on self-defense. The defendant in McFadden had been convicted of aggravated assault and attempted murder in connection with the shooting of her ex-husband. At trial, she testified to past abuse and threats by her ex-husband and said that, because of her fear of her ex-husband, she had borrowed a shotgun, which she had kept loaded in a comer of her bedroom. According to the defendant, the shooting had occurred while her ex-husband had been hitting her and after he had grabbed the gun. The defendant testified that she had struggled with her ex-husband over the gun and, when he had let go of the gun, she had fallen back with it and the gun had gone off. The Commonwealth argued that a jury instruction on self-defense was not appropriate because the defendant had testified that the shooting was accidental. The Superior Court, however, rejected the Commonwealth’s assertion that testimony indicating an accidental shooting was necessarily inconsistent with a claim of self-defense. The Court reasoned as follows:

In Mayfield, this Court specifically addressed the propriety of a self-defense charge where a defendant asserts that he acted in the course of self-defense but denies actually causing the injury: “It is the specific denial of the use of deadly force for one’s own protection which precludes the claim of self-defense being put in issue”. Mayfield, supra, 401 Pa.Super. at 571, 585 A.2d at 1074. (emphasis added). The testimony of appellant did not “negate any element of self-defense” that would preclude the necessity to submit the issue to the jury on request of the defendant. See: Commonwealth v. Mayfield, supra, at 571, 585 A.2d at 1074. Moreover, the testimony of appellant that she feared for her life and did not remember where she pointed the gun, or whether her finger was on the trigger, if believed by the jury, would have justified a finding that appellant acted in self-defense. See e.g., Commonwealth v. Gonzales, 334 Pa.Super. 603, 607-608, 483 A.2d 902, 904 (1984). While the Commonwealth continues to argue that a self-defense charge was not required because appellant refused to admit that she had fired the weapon purposefully, the submission of a self-defense charge does not require such an admission. Commonwealth v. Gonzales, supra at 609, 483 A.2d at 905. See: Commonwealth v. Mayfield, supra, 401 Pa.Super. at 576-577, 585 A.2d at 1077. Thus we are obliged to conclude that appellant was entitled to a self-defense charge.

Commonwealth v. McFadden, supra, 402 Pa.Super. at 525-526, 587 A.2d at 744.

After careful review of the foregoing case law, we conclude that there was in appellant’s testimony nothing to negate any of the elements of self-defense. Rather, appellant’s testimony was that while struggling over a gun which the victim had pointed at him, the gun had accidently discharged when he fell and hit his elbow on the ground. From this testimony, a reasonable jury could have concluded that the shooting, although accidental in nature, occurred while appellant was defending himself. Under these circumstances, the decided cases suggest, appellant was entitled to a jury instruction on self-defense. See: Commonwealth v. McFadden, supra; Commonwealth v. Mayfield, supra.

The instant case is distinguishable from Commonwealth v. Webster, supra, where the defendant, during cross-examination, specifically denied that he had acted in self-defense. In the instant case, as we have observed, appellant’s testimony did not negate any of the elements of self-defense and did not refute the possibility that he was struggling for the gun to protect himself. Upon request, therefore, appellant was entitled to have the jury instructed upon the law pertaining to self-defense. When the trial court denied appellant’s request for such an instruction, it committed reversible error. Consequently, a new trial is necessary.

The judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction is not retained.

      . The trial court sustained a demurrer to a charge of recklessly endangering another person, and the jury found Wilson not guilty of charges of robbery and aggravated assault.


author: CAVANAUGH, Judge.

text:
    639 A.2d 1199
    CUMBERLAND VALLEY SCHOOL DISTRICT, Appellant, v. HALL-KIMBRELL ENVIRONMENTAL SERVICES, INC., Penoco, Inc., Abatement Technologies, Inc. and Commercial Casualty Insurance Company, I. Schneid, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1993.
    Filed April 5, 1994.

      John C. Dowling, Harrisburg, for appellant.
    Glenn P. Heisey, Harrisburg, for appellee Hall-Kimbrell.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   CAVANAUGH, Judge.

This is an appeal from an order granting preliminary objections in the nature of a demurrer. Appellant, Cumberland Valley School District (Cumberland), sued appellees, HallKimbrell Environmental Services, Inc. (H-E) and Penoco, Inc., upon various causes of action based upon contract, tort, and statutes. The parties had entered into business relationships pertaining to the removal of asbestos from several of Cumberland’s school buildings. The order in question relates to Cumberland’s ability to maintain a cause of action under the Unfair Trade Practices and Consumer Protection Law, (UTPCPL) 73 P.S. § 201-1 et seq. That statute provides that private actions may be maintained by, “Any person who purchases or leases goods or services primarily for personal, family or household purposes,” 73 P.S. § 201-9.2. The lower court held that Cumberland’s purchase of asbestos abatement services for its school buddings was not primarily for personal, family or household purposes, and, therefore, it granted the preliminary objections.

The standard of review of an order granting preliminary objections in the nature of a demurrer is as follows:

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless. Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, “the novelty of a claim or theory alone, does not compel affirmance.” Neff v. Lasso, supra [382 Pa.Super. 487] 555 A.2d [1304] at 1305 [ (1989) ]. Valley Forge Towers v. Ron-Ike F. Ins., supra [393 Pa.Super. 339], 574 A.2d [641] at 644.

Foflygen v. Zemel, 420 Pa.Super. 18, 32, 615 A.2d 1345, 1352 (1992).

On appeal, Cumberland argues that its claims are within the UTPCPL because it is acting as the legal representative of the school district’s taxpayers and students and it purchased appellees’ services to satisfy the public’s personal purpose of having adequate educational facilities. It alleges that the question of application of the UTPCPL to the circumstances of this case presents an issue of fact. Brief for Appellant at 18. Therefore the lower court, appellant contends, erred in failing to give it the benefit of assuming the truth of all material facts and reasonable inferences set out in the amended complaint.

Appellant places primary reliance upon Valley Forge Towers South Condominium, v. Ron-Ike Foam Insulators, Inc., 393 Pa.Super. 339, 574 A.2d 641 (1990) aff'd. 529 Pa. 512, 605 A.2d 798 (1992). In Valley Forge a residential incorporated condominium association was permitted to maintain a private cause of action under the UTPCPL in its statutory representative capacity of individual unit owners against a manufacturer of a roofing product. Because the structural integrity of the roof over the whole condominium building was at issue (both business and residential areas), it was held that the complaint stated a cause of action under the UTPCPL.

Cumberland’s attempt to fashion its claim to fall within the holding of Valley Forge fails for two reasons. First, Cumberland is not the legal representative of its taxpayers and students. Unlike the incorporated condominium association in Valley Forge which was authorized by statute, 68 P.S. § 3302(a)(4-7), and case law 1000 Grandview Association v. Mt. Washington Association, 290 Pa.Super. 365, 434 A.2d 796 (1981), to represent its members, Cumberland is a school district that has no authority to maintain a lawsuit as the legal representative of its taxpayers and students. The two cases cited by Cumberland as support for its argument, Stroudsburg Area School District v. R.K.R. Associates, 417 Pa.Super. 85, 611 A.2d 1276 (1992) and Mt. Lebanon School District v. W.R. Grace and Company, 414 Pa.Super. 455, 607 A.2d 756 (1992), do not address a school district’s capacity to act as the legal representative of its taxpayers and students. Rather, these cases discuss the statutory duty of school districts to build and maintain safe and suitable schools within a distinct territory. Both Stroudsburg and Mt. Lebanon involved application of the doctrine nullum tempus in suits brought by school districts against contractors and architects. In Mt. Lebanon, where the school district sued manufacturers and installers of asbestos-containing products, this court stated that such suits were brought by the school district in its governmental capacity to enforce strictly public rights. Mt. Lebanon, supra at 414 Pa.Super. at 466, 607 A.2d at 762. Although the UTPCPL was not at issue in these cases, the statements made in them regarding the source and nature of the school district’s obligations militates against a finding that the district acts in a representative capacity.

Similarly, the second reason against finding a private right of action under § 201-9.2 is that the primary purpose of the purchase was not for personal, family or household use. As stated above, this court in Mt. Lebanon noted that in suing manufacturers, installers and removers of asbestos-laden products, the school district acts to enforce strictly public rights. Id. It would entail a far stretch for this court to accept Cumberland’s argument that the asbestos abatement services at issue were purchased primarily for the personal, family or household benefit of its taxpayers and students in having adequate facilities for education, community meetings, athletics and other non-business uses. Brief for Appellant at 22. Appellant’s own description of the uses to which its school buildings were put evinces a governmental purpose in providing the public a safe school with architectural and structural integrity. The obligation of taxpayers to pay for and of students to attend such a school as a community facility does not transform the school district’s legal duty to provide it into a non-governmental purpose. Taxpayers and students have interests in safe and sound schools qua citizens who financially support the educational program and who benefit from it. Neither of these interests is of a “personal, family or household” purpose mandated by § 201-9.2 of the UTPCPL.

In fulfillment of its constitutional and statutory duties, the appellant engaged the services of the appellees. The appellant acted pursuant to a public purpose. As stated in Stroudsburg,

As an agency of the legislature, a school district is unquestionably fulfilling an obligation imposed upon it by law when it is constructing new school buildings to house the school children of the Commonwealth. Accordingly, when a school district is seeking to recover damages for any alleged negligence or defects in any facet or component involved in the construction, design and/or maintenance of school buildings housing the school children of this Commonwealth, the School District is seeking to vindicate public rights and protect public property, i.e. ensuring that school buildings built and maintained with taxpayers’ dollars are both safe and suitable for school children.

Id. at 417 Pa.Super. at 92, 611 A.2d at 1279-80.

We find no error in the lower court’s sustaining the preliminary objections.

Order affirmed.

      . We note that this law suit was filed prior to the July 6, 1992 effective date of amended Rule of Appellate Procedure 341 and the order being reviewed was entered before March 1, 1994. Therefore, the appeal is properly before this court.

        . This is an issue of law, not an issue of fact which must be accepted as trae from appellant’s pleadings.


author: BROSKY, Judge.

text:
    639 A.2d 1202
    Gail D. GIERINGER, Appellant, v. Wayne R. MOWERY.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1993.
    Filed April 5, 1994.
    Barbara H. Guenther, Bernville, for appellant.
    • Susan Muse Hill, Bloomsburg, for appellee.

      Before ROWLEY, President Judge, and WIEAND and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order dismissing appellant’s Petition for educational support of the parties’ daughter, Christi. Appellant raises one issue for our determination, whether the decision in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), required the dismissal of appellant’s petition for educational support where the parties had stipulated to a settlement of property matters which included a provision that father would assist in the cost of higher education of the children to the extent he is able to do so. We reverse and remand.

The parties were married in 1970 and were divorced in 1983. Just prior to the Master’s hearing the parties entered into a Stipulation and Agreement settling certain property issues. These stipulations were incorporated into the Master’s Report and Recommendation which was subsequently approved by the Court of Common Pleas. One provision of that Stipulation and Agreement provided “that husband will assist with the cost of higher education of the children born of the marriage to the extent that he is able to do so.” Prior to Christi’s graduation from high school, appellee was paying support in the amount of $236 per month. Upon Christi’s graduation appellee petitioned to terminate support. Appellant responded by petitioning for college expenses. A hearing was scheduled with a Domestic Relations Hearing Officer at which the DRHO did not make a determination but instead scheduled a second hearing. At this hearing, appellant alleges, the Hearing Officer stated that a recommendation of $175 per month would be entered, but when the recommendation was received it was for $100 per month. Appellant appealed and a hearing was scheduled before a Special Hearing Officer. At the next hearing, the petition was dismissed due to the filing of our Supreme Court’s decision in Blue v. Blue, supra. Appellant filed exceptions which were heard by the Court of Common Pleas which dismissed the Exceptions and the Petition. This appeal followed.

In dismissing appellant’s Exceptions and Petition, the trial court opined that the Court of Common Pleas lacked jurisdiction of the petition for college expenses in light of the Supreme Court’s decision in Blue v. Blue, and further, that such support was no longer recognized. We disagree. In Blue v. Blue, our Supreme Court held that there was no statutory or common law obligation of a parent to assist in a child’s post-high school education. However, nothing in Blue suggests that an obligation arising from an Agreement or Stipulation would be unenforceable and it has long been recognized that a support obligation can arise from an Agreement of the parties. See, Reif v. Reif, 426 Pa.Super. 14, 626 A.2d 169 (1993). As such, appellee’s purported obligation to provide financial assistance to Christi’s education set forth in the stipulation contained in the Master’s Recommendation would seem unaffected by Blue. Additionally, our Legislature, in apparent amelioration of the Blue decision, created such an obligation in 23 Pa.C.S.A. § 4327. See also, Hecker v. O’Connell, 427 Pa.Super. 608, 629 A.2d 1036 (1993). Furthermore, the Legislature made that provision retroactive to November 12, 1992. As such, Christi’s entitlement to financial assistance for her college expenses from appellee emanates from two sources. The Stipulation incorporated in the Recommendation and Court Order, and from 23 Pa.C.S.A. § 4327.

Appellee argues that the order in question properly dismissed the petition for college expenses because such petition was based upon a contractual right and was not properly in Family Division. However, this argument fails to acknowledge that the Stipulation and Agreement was incorporated into the Master’s Report and Recommendation and was later approved by the trial court in its order of March 31,1983. As such, the terms of the Agreement were a part of the Order of March 31, 1983, and the action for support was properly filed in Family Division.

For the above reasons, we conclude that the Court of Common Pleas improperly dismissed appellant’s petition for college expenses. We remand for consideration of appellant’s Exceptions to the Master’s Recommendation.

Order reversed, remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


text:
    639 A.2d 1204
    Wilma DUCKO and Albert Ducko, her husband, Appellants, v. CHRYSLER MOTORS CORPORATION and Reedman Corp., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1994.
    Filed April 6, 1994.

      Harry J. Oxman, Philadelphia, for appellants.
    Keith D. Heinold, Philadelphia, for appellees.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge.

In this product liability action, the sole issue is the sufficiency of the circumstances surrounding a malfunction of an automobile to establish prima facie the existence of a manufacturing defect. The trial court determined the evidence to be insufficient and entered summary judgment in favor of the manufacturer. After careful review, we reverse.

An order granting summary judgment is appropriate when a review of all the interrogatories, affidavits and depositions of record indicates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Buckno v. Penn Linen & Uniform, Service, Inc., 428 Pa.Super. 568, 565, 631 A.2d 674, 675 (1993). However, “[a]n entry of summary judgment may be granted only in cases where the right is clear and free of doubt.” Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). When considering whether summary judgment is proper, the record must be examined in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992).

On November 23, 1984, Wilma Ducko was driving a newly purchased, 1985 Chrysler Fifth Avenue southwardly on the Atlantic City Expressway, in New Jersey, when the vehicle suddenly jerked to the right. Although she tried with all her strength to straighten the course of her vehicle, she said, the steering felt as though it had locked. When she attempted to apply the brakes, they also failed to respond. The vehicle, which had been moving at a speed of 55 m.p.h., travelled across the highway, down an embankment and into a group of trees. Ducko received serious injuries, including a broken back, and the vehicle was totalled. Prior to the accident, the vehicle had been driven 1,655 miles; it had been purchased less than two months before. The road surface at the time of the accident was dry.

An expert employed by the plaintiffs found no specific defect in the vehicle. He opined that Mrs. Ducko’s accident had been caused by a transient malfunction of the system providing power to the steering and brakes. Chrysler’s expert, however, observed that both steering and brakes were operational, and he found no abnormalities in any of the car’s systems. He said that at a speed of 55 m.p.h. even a temporary power failure would not have rendered the steering uncontrollable. He expressed the opinion that the accident was a result of operator error.

When advancing a theory of strict product liability, a plaintiff has the burden of showing that the product was defective, that the defect was the proximate cause of his or her injuries and that the defect existed at the time the product left the manufacturer. Woodin v. J.C. Penney Co., Inc., 427 Pa.Super. 488, 490, 629 A.2d 974, 975 (1993); Vernon v. Stash, 367 Pa.Super. 36, 48, 532 A.2d 441, 447 (1987); Swartz v. General Elec. Co., 327 Pa.Super. 58, 66, 474 A.2d 1172, 1176 (1984). In certain cases of alleged manufacturing defects, however, the plaintiff need not present direct evidence of the defect. When proceeding on a 'malfunction theory, the plaintiff may “present a case-in-chief evidencing the occurrence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction.” O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 435, 567 A.2d 680, 682 (1989). See also: Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir.1979). From this circumstantial evidence, a jury may be permitted to infer that the product was defective at the time of sale. Vernon v. Stash, supra 367 Pa.Super. at 48, 532 A.2d at 448. This was summarized in Woodin v. J.C. Penney Co., Inc., supra, as follows:

Generally, a plaintiff will produce direct evidence of a product’s defective condition. In those cases where the plaintiff is unable to prove the precise nature of the product’s defect, however, he may, in some cases, rely on the “malfunction theory” of product liability. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989). The malfunction theory allows the plaintiff to use circumstantial evidence to establish a defective product. In Rogers v. Johnson & Johnson Products, Inc., supra, the court stated:
[The malfunction theory] permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. [The plaintiff is relieved] from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes.
Id. (citations omitted). Although proof of a specific defect is not essential to establish liability under this theory, the plaintiff cannot depend upon conjecture or guesswork. “The mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury.” Stein v. General Motors Corp., 58 D. & C.2d 193, 203 (Bucks 1972), aff'd, 222 Pa.Super. 751, 295 A.2d 111 (1972).

Id., 427 Pa.Super. at 492, 629 A.2d at 975-976. The malfunction theory, thus, does not relieve the burden of establishing a defect. Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 418, 614 A.2d 699, 706 (1992). See also: Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d Cir.1982). However, “[t]he malfunction itself is circumstantial evidence of a defective condition, ...” D’Antona v. Hampton Grinding Wheel Co., Inc., 225 Pa.Super. 120, 124, 310 A.2d 307, 309 (1973). When a party relies on the malfunction of a product to prove that it was defective, testimony identifying the exact nature of the alleged defect is not essential. “Although it is helpful for a plaintiff to have direct evidence of the defective condition which caused the injury or expert testimony to point to that specific defect, such evidence is not essential in a strict liability case based on § 402A [of the Restatements (Second) of Torts].” Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 136, 359 A.2d 822, 825 (1976) (emphasis in original). See also: Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 329, 319 A.2d 914, 920 (1974). Where the alleged malfunction occurs shortly after the product has been delivered to the user, the inference that the defect originated with the manufacturer is stronger. Cornell Drilling Co. v. Ford Motor Co., supra 241 Pa.Super. at 140, 359 A.2d at 827.

In MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), the plaintiff had purchased her car a little more than a month before and had driven the vehicle only one hundred and forty-three (143) miles prior to the accident. According to the plaintiff’s testimony, while driving on the Pennsylvania Turnpike, at approximately fifty (50) or sixty (60) miles per hour, the steering on her vehicle failed to respond, and her car veered off the road and onto the berm. The plaintiffs expert examined the vehicle and observed irregularities in the steering mechanism which, he said, might have been the cause of the problem described by the plaintiff. He was unable, however, to confirm positively that the irregularities had been the cause of the accident. After the close of all evidence, the jury returned a verdict in favor of the plaintiff. The defendant’s motion for judgment n.o.v. was denied by the trial court. On appeal, the defendant argued that the plaintiff had not shown any specific mechanical defect which had caused the accident. The Superior Court, concluding that the plaintiff had met her burden of proof through circumstantial evidence, said, “proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty.” Id. at 389, 257 A.2d at 679. Therefore, the Court held that Mrs. MacDougall’s testimony of the bizarre steering action, prior to and at the time of the accident, “established] a mechanical malfunction in the absence of abnormal use which prevented her from maintaining control of the car.” Id. at 391, 257 A.2d at 680. As to the significance of her expert’s opinion, the Court said, “[A]lthough proof of specific steering defects was not a prerequisite to establishing liability, we note that [plaintiffs expert’s] testimony ... lends definite additional support to this inference.” Id. at 391-392, 257 A.2d at 680 (emphasis added).

Later, in Agostino v. Rockwell Mfg. Co., 236 Pa.Super. 434, 345 A.2d 735 (1975), the Superior Court again considered the burden of proof required under the malfunction theory. In that case, the plaintiff had purchased a power saw equipped with a blade guard less than a month before his injury and had used it only ten times. On the day of the accident he successfully cut three boards and was attempting to rest the saw on a work bench when the saw blade caught his trousers and cut his thigh. The plaintiff testified that the blade guard had appeared to be jammed. At trial, the court granted a compulsory non-suit in favor of the defendant, holding that there was no evidence to establish that the saw had malfunctioned. The Superior Court reversed and remanded for a new trial. Because the plaintiff had said that the blade guard appeared to have been jammed, the Court held that “[t]he jury could have properly inferred from [the plaintiffs] testimony that the [blade] guard did not function properly.” Id. at 444, 345 A.2d at 740.

In Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 592 A.2d 1377 (1991), the Superior Court again considered a plaintiffs evidentiary burden under the malfunction theory. There the plaintiff had been injured when the chair in which he had been sitting suddenly collapsed. At trial the plaintiff offered his own testimony concerning the events of his fall and the testimony of an eyewitness. The defendant, on the other hand, presented an expert who had examined the chair and opined that it was not defective. He concluded that the accident must have been the result of abnormal use by the plaintiff. The trial court refused to instruct the jury on the malfunction theory, and the jury returned a verdict for the defendant. On appeal, the Superior Court reversed and remanded for a new trial. Because the jury could have inferred a defect from the plaintiffs testimony, the Court held that a jury instruction on the malfunction theory was required. It said:

Thus, the record contains conflicting evidence regarding abnormal use. The determination of which version of events to credit, of course, was for the jury. See Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973) (credibility determinations within exclusive province of finder of fact). If the jury chose to credit appellant’s testimony, it could have found that there was no abnormal use or other reasonable secondary cause for the chair to collapse---We therefore conclude that appellant was entitled to have the jury instructed that if it found no abnormal use, it could find that the chair malfunctioned.

Id. 405 Pa.Super. at 607-608, 592 A.2d at 1379.

In granting appellee’s motion for summary judgment in the instant case, the trial court relied upon the deposition testimony and reports submitted by Chrysler’s expert. This was error. Mrs. Ducko’s testimony of the erratic performance of the vehicle’s steering and braking systems, under the circumstances of this case, was sufficient to make out a prima facie case of a manufacturing defect in the vehicle. The issue of strict liability, therefore, was a disputed issue for the jury. Although a jury, after considering the testimony of appellee’s expert witnesses, may find that the vehicle was not defective and that the accident was caused by operator error, it was improper for the trial court to make such a determination summarily and as a matter of law.

Our decision, as we have attempted to demonstrate, is compelled by prior decisions of the Superior Court. It is also consistent with decisions in other jurisdictions which have adopted the malfunction theory and allow proof of a defectively manufactured product by circumstantial evidence. See, e.g.: Sochanski v. Sears, Roebuck & Co., 621 F.2d 67 (3d Cir.1980); Stewart v. Ford Motor Co., 553 F.2d 130 (D.C.Cir.1977); Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985); Wakabayashi v. Hertz Corp., 66 Haw. 265, 660 P.2d 1309 (1983); Gillespie v. R.D. Werner Co., Inc., 71 Ill.2d 318, 17 Ill.Dec. 10, 375 N.E.2d 1294 (1978); Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925 (1984); Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975); Brownell v. White Motor Corp., 260 Or. 251, 490 P.2d 184 (1971).

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


author: CIRILLO, Judge: BECK, Judge,

text:
    639 A.2d 1208
    BRITAMCO UNDERWRITERS, INC., Appellant, v. Edward R. GRZESKIEWICZ and Joan Grzeskiewicz, h/w, t/a Dagwood’s Pub and Donna Lee Smith.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1994.
    Filed April 7, 1994.

      R. Bruce Morrison, Philadelphia, for appellant.
    Philip L. Blackman, Philadelphia, for Grzeskiewicz, appellees.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from the order entered in the Court of Common Pleas of Philadelphia County denying appellant Britamco Underwriters, Inc.’s (Britamco) petition for reconsideration of the order denying summary judgment, and denying Britamco’s petition to certify the order to permit appeal. We reverse.

Donna Lee Smith (Smith) filed suit against Edward F. Grzeskiewicz and Joan Grzeskiewicz h/w individually & t/a Dagwood’s Pub (collectively as Dagwood’s Pub) and William Hopania alleging that William Hopania, a patron of Dagwood’s Pub, violently attacked Smith with a broken beer bottle, striking her in the face. Smith’s complaint also asserted that her injuries were caused by Dagwood’s Pub’s carelessness, recklessness, negligence and/or gross and wanton disregard, through its agents, servants, or employees.

Dagwood’s Pub sought coverage for Smith’s claims under its Multi-Peril policy with Britamco. In response, Britamco’s claim representative sent to Dagwood’s Pub a reservation of rights letter in which Britamco denied and disclaimed coverage due to policy exclusions for claims arising from incidents of assault and battery and for liquor liability/dram shop claims. Thereafter, Britamco filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify Dagwood’s Pub in connection with Smith’s claims. After Smith and Dagwood’s Pub filed their answers, Britamco filed a motion for summary judgment on three grounds: (1) the incident in question was not an “occurrence” under the language of the policy; (2) the claims were excluded from coverage under the language of the assault and battery endorsement to the policy; and (3) the dram shop claim was excluded from coverage under the language of the liquor liability exclusion of the policy. The Honorable John W. Herron denied Britamco’s motion for summary judgment. Britamco’s petitions for reconsideration and, in the alternative, for certification of this matter for review were denied. This court granted Britamco’s petition for review. See Pa.R.A.P. 1311; 42 Pa.C.S.A. § 702(b). Britamco presents three issues for our review:

(1) Whether the trial court erred in denying Britamco’s motion for summary judgment holding that factual questions exist as to whether the alleged negligence of defendants (Dagwood’s Pub) constitutes an “occurrence” under the insurance policy?
(2) Whether the trial court erred in failing to set forth any reason why it denied Britamco’s motion for summary judgment where the underlying claim is excluded by the assault and battery exclusion of the policy?
(3) Whether the trial court erred in failing to set forth any reason why it denied Britamco’s motion for summary judgment where the underlying liquor liability claim is excluded by the liquor liability exclusion of the policy?

When we review the grant or denial of a motion for summary judgment made under Pa.R.C.P. 1035, our scope of review is well settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry or denial of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

The duty to defend is a distinct obligation, separate and apart from the insurer’s duty to provide coverage. Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574, 582, 533 A.2d 1363, 1368 (1987). Moreover, the insurer agrees to defend the insured against any suit arising under the policy “even if such suit is groundless, false, or fraudulent.” Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 56, 188 A.2d 320, 321 (1963). Since the insurer agrees to relieve the insured of the burden of defending even those suits which have no basis in fact, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Id.; see also Wilson v. Maryland Cas. Co., 377 Pa. 588, 105 A.2d 304 (1954); Biborosch v. Transamerica Ins. Co., 412 Pa.Super. 505, 603 A.2d 1050 (1992); Youngman v. CNA Ins. Co., 401 Pa.Super. 381, 585 A.2d 511 (1991). In order to determine whether a claim may potentially come within the coverage of the policy, we must first ascertain the scope of the insurance coverage and then analyze the allegations in the complaint. Biborosch, 412 Pa.Super. at 509, 603 A.2d at 1052 (citing Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959)).

The standards to be applied in reviewing insurance contracts are well settled. The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id. However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978) and Winters v. Erie Insurance Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991); see also Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988); St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 630 A.2d 28 (1993) (en banc). Where a provision of an insurance policy is ambiguous, the provision is construed in favor of the insured and against the insurer. Bateman, 527 Pa. at 245, 590 A.2d at 283.

First, Britamco contends that the trial court erred in finding that factual questions exist as to whether the alleged negligence of Dagwood’s Pub constitutes an “occurrence” under the policy. We agree.

The policy provides:

“occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

(emphasis added). In support of its position, Britamco relies on Gene’s Restaurant, Inc. v. Nationwide Ins. Co., 519 Pa. 306, 548 A.2d 246 (1988). There, Nationwide issued Gene’s Restaurant a comprehensive general liability insurance policy which defined “occurrence” in the same manner as does the policy in this case. After reviewing the policy and the underlying complaint, the Pennsylvania Supreme Court held:

Under this definition an ‘occurrence’ is an accident. The willful and malicious assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend.

Id. at 309, 548 A.2d at 247.

Here, Count II of Smith’s complaint sets forth Smith’s claims against Hopania. Smith avers that “the injuries and damages she sustained ... occurred as [a result of] the intentional, willful and purposeful acts of William Hopania.” Smith does not allege that the incident in question amounted to an “accident,” nor does she claim that her injuries were incurred as a result of any negligence by Hopania. In light of these allegations and the Supreme Court’s decision in Gene’s Restaurant, supra, we find that Smith’s claims against Dagwood’s Pub, arising out of Hopania’s assault, do not constitute an “occurrence” as defined by the instant policy.

This case is distinguishable from our recent decision in Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 636 A.2d 649 (1993). In Weiner, a patron of a bar (plaintiff) sued the bar, the owners of the bar, and an employee for neck injuries that the plaintiff sustained as a result of an altercation at the bar one evening. The bar sought coverage for the plaintiffs claims under its general liability policy with Britamco. As in this case, Britamco filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the bar in connection with the plaintiffs claims. After examining the underlying complaint and the insurance policy in Weiner, however, this court found that Britamco owed the bar a duty to defend. Id.

In contrast to this case, the plaintiff in Weiner did not set forth a separate count against the individual(s) who allegedly struck him in the neck. In fact, the underlying complaint in Weiner alleged that he was struck by one of the owners of the bar and/or by one of the bar’s employees. In addition, the plaintiff there did not allege that he received his injuries solely as the result of the intentional acts of one or more of the defendants. Specifically, paragraph 23 of the Weiner complaint averred that the “defendants (including the bar, the owners of the bar, and an employee) intentionally, recklessly and/or negligently performed the aforementioned acts — ” We held, therefore, that because the plaintiffs claims may potentially come within the coverage of the Britamco policy, Britamco owed the bar a duty to defend. Id.; Gedeon, supra. Such is not the case here.

Notwithstanding the above, the assault and battery endorsement to the policy clearly excludes coverage in this case:

Assault & Battery Endorsement
[T]he Company [Britamco] is under no duty to defend or to indemnify an insured in any action ... alleging such damages:
1. Assault;
2. Battery;
3. Harmful or offensive contact between two or more persons ...
Regardless of degree of culpability or intent and without regard to:
C. The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct.

(emphasis added).

In paragraph eight (8) of her complaint, Smith alleges various claims of negligence and/or recklessness against Dagwood’s Pub through its agents, servants, or employees. Some of these averments can be paraphrased as follows:

(a) permitting Hopania to remain on the premises when it (Dagwood’s Pub) knew or should have known of his dangerous propensities (boisterous, threatening gestures, etc.);
(b) failing to take reasonable measures to prevent Hopania from becoming boisterous, loud, etc., when they knew or should have known ...;
(c) failing to warn Smith of the above-mentioned hazards and/or dangers;
(d) failing to use due care under the circumstances;
(e) failing to exercise the highest degree of care as required by an innkeeper;
(f) failing to protect Smith from the negligence or intentional acts of Hopania when such propensities were known or should have been known;
(g) failing to instruct employees concerning their duties to protect patrons....

These allegations are clearly excluded by the above-quoted assault and battery endorsement to the policy.

Dagwood’s Pub contends that the assault and battery exclusion in the policy does not conform to its agreement with Britameo that the policy would cover injury to third parties caused by Dagwood’s Pub’s negligence or the negligence of its employees. Dagwood’s Pub points to its signed application for insurance where it agreed to an assault and battery exclusion, which provides as follows:

The policy will contain the following specific insuring agreements:
* Assault & Battery Exclusion — excludes claims arising out of Assault & Battery for any cause including negligence in hiring, retention and control of employees....

(emphasis added). Dagwood’s Pub argues that the final assault and battery exclusion contained in the policy is much broader than the exclusion that it agreed to in the application for insurance. Nonetheless, we find that the exclusion contained in the application unambiguously precludes recovery under the instant set of facts. Bateman, supra. Again, Smith’s underlying complaint against Dagwood’s Pub and Hopania claims that her injuries were solely the result of Hopania’s “intentional, willful and purposeful acts.” Her claims, therefore, are expressly barred as they “ar[ose] out of [an] Assault [and] Battery.”

Finally, Britameo contends that the liquor liability exclusion of the policy precludes recovery as to Smith’s dram shop claim against Dagwood’s Pub. We agree.

Paragraph 8(c) of Smith’s complaint avers that Dagwood’s Pub violated “various provisions of the Pennsylvania Liquor Code.” However, the instant insurance policy contains a liquor liability exclusion, which reads in part:

LIQUOR LIABILITY EXCLUSION
It is agreed that this policy shall not apply to Bodily injury or Property Damage for which the Insured or his indemnitee may be held liable.
1. as a person or organization engaged in the business of manufacturing, selling or serving alcoholic beverages, by reason of selling, serving or giving any alcohol[ic] beverage[;]
(a) in violation of any statute, ordinance, or regulation—

(underlining added). We find that this provision clearly and unambiguously excludes coverage for Smith’s general claim under the liquor code (dram shop claim). Bateman, supra. See Curbee, Ltd. v. Rhubart, 406 Pa.Super. 505, 594 A.2d 733 (1991); United States Fidelity and Guar. v. Griggs, 341 Pa.Super. 286, 491 A.2d 267 (1985).

Order denying summary judgment is reversed. Jurisdiction is relinquished.

BECK, J., files a concurring statement.

BECK, Judge,

concurring.

I concur in the result. While I am persuaded that the instant case is correctly decided, I find the majority’s attempt to distinguish Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 636 A.2d 649 (1993), unsuccessful.

I do not agree that the acts alleged in Weiner were accidental. They appear to have been as intentional as the acts alleged in this case, where the majority correctly concludes that the insurance company does not have a duty to defend because the acts complained of were intentional.

      . Also couched in Britamco’s first question presented is a challenge to the trial court’s denial of its request for certification for review to this court. We find this issue mooted by this court’s order granting Britamco’s petition for review.

      . Dagwood’s Pub argues that Britameo is precluded from raising this issue because Britameo failed to raise it in its complaint for declaratory judgment. We disagree. This issue is properly before this court because Britamco raised it in the trial court in its motion for summary judgment. See Pa.R.A.P. 302(a) and Princeton Sportswear Corp. v. H & M Associates, 510 Pa. 189, 507 A.2d 339 (1986).


author: KELLY, Judge:

text:
    639 A.2d 1213
    COMMONWEALTH of Pennsylvania, Appellant, v. CSX TRANSPORTATION, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed April 7, 1994.

      Emily Smarto, Asst. Dist. Atty., Greensburg, for Com., appellant.
    James Becker, Philadelphia, for appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal, we must determine if the Pennsylvania Superior Court is the proper appellate court to review a trial court’s decision concerning a regulatory statute which imposes criminal penalties. We hold that the Commonwealth Court is the proper appellate court to review a trial court’s decision regarding a regulatory statute even when the statute imposes criminal penalties. Thus, we transfer this appeal to the Commonwealth Court.

The facts of the instant appeal are as follows. Appellee, CSX Transportation, Inc. (CSXT), is a corporation doing business in this Commonwealth as a railroad carrier service. On or about August 23, 1989, a CSXT train was travelling on its tracks along the Youghiogheny River in South Huntingdon Township, Westmoreland County. As a direct result of heavy rainfall and flooding, a portion of the tracks was washed out from under the train, causing the train to derail. Some of the cars rolled down an embankment, two of the cars were damaged to the extent that some of their contents seeped into the Youghiogheny River. The Pennsylvania Fish Commission caused the District Attorney of Westmoreland County to file a charge of pollution of waters under 30 Pa.C.S.A. § 2504 against CSXT.

On June 18, 1992, CSXT filed an omnibus pre-trial motion for relief which included a motion to quash the criminal information. On October 21, 1992, the Honorable Richard E. McCormick granted CSXT’s motion to quash and dismiss the information. This timely appeal follows.

Appellant raises the following issues on appeal:

I. DID THE LOWER COURT ERR IN APPLYING THE REQUIREMENTS OF 18 Pa.C.S. 3301 REQUIREMENT OF VOLUNTARY ACT) [sic] TO A PROVISION OF THE FISH AND BOAT CODE, 30 Pa.C.S.A. § 2504(a)(2) (POLLUTION OF WATERS) WHEN THE LATTER IS AN ABSOLUTE LIABILITY STATUTE WHICH TRIGGERS THE APPLICABILITY OF 18 Pa.C.S. § 305 (LIMITATIONS ON SCOPE OF CULPABILITY REQUIREMENTS)?
II. WHETHER 30 Pa.C.S. § 2504(a)(2) OF THE FISH AND BOAT CODE (POLLUTION OF WATERS) IS A STATUTORY PROVISION THAT IS WITHIN THE PARAMETERS OF THE DUE PROCESS PROTECTIONS OF THE UNITED STATES AND PENNSYLVANIA CONSTITUTION?

Appellant’s Brief at 3.

Before we can reach the merits of an appeal, we must first ascertain whether retention of jurisdiction is appropriate. Even when neither party has raised the issue of jurisdiction, this Court may, sua sponte, determine whether retention of jurisdiction is appropriate, or whether the matter should be transferred to the Commonwealth Court. See Wilson v. School District of Philadelphia, 410 Pa.Super. 416, 600 A.2d 210 (1991).

Pursuant to 42 Pa.C.S.A. § 762 (appeals from courts of common pleas), the Commonwealth Court has exclusive jurisdiction of the instant appeal. Section 762 of 42 Pa.C.S.A. states in pertinent part:

(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the court of common pleas in the following cases:
(2) Governmental and Commonwealth regulatory criminal cases. — All criminal actions or proceedings for the violation of any:
(ii) Regulatory statute administered by any Commonwealth agency subject to Subchapter A of Chapter 5 of Title 2 (relating to practice and procedure of Commonwealth agencies). The term “regulatory statute” as used in this sub-paragraph does not include any provision of Title 18 (relating to crimes and offenses).

The term “regulatory statute” is not expressly defined in 42 Pa.C.S.A. § 762. Generally, a “regulatory statute” is the result of the exercise of the state’s police power to enact regulations to promote the public health, morals or safety, and the general well-being of the community. Commonwealth v. Harmar Coal Co., 452 Pa. 77, 92, 306 A.2d 308, 316 (1973), appeal dismissed, 415 U.S. 903, 94 S.Ct. 1395, 39 L.Ed.2d 460 (1974).

The Pennsylvania Fish and Boat Commission (“Commission”) was established to encourage, promote, develop, and protect fishing interests. 30 Pa.C.S.A. § 2101. The Commission is authorized to promulgate rules and regulations to aid in the better protection, preservation, and management of fish. 30 Pa.C.S.A. § 2102. The Commission is an independent governmental commission. 30 Pa.C.S.A. § 301(a). The Commission is considered an independent agency and a “Commonwealth Agency” for the purposes of Subchapter A of Chapter 5 of Title 2 (relating to practice and procedure of Commonwealth agencies.) See 2 Pa.C.S.A. § 101 (relating to definitions of agencies). The legislature enacted 30 Pa.C.S.A. § 2501 et seq. to protect waters and property adjacent to or contiguous to waters. It is clear from the purposes of the Fish and Boat Commission enabling legislation and the Fish and Boat Code that 30 Pa.C.S.A. § 2504 is a “regulatory statute” within the meaning of 42 Pa.C.S.A. § 762.

Although 30 Pa.C.S.A. § 2504 provides for the imposition of criminal penalties, the Commonwealth Court has jurisdiction. In Commonwealth v. Tyson, 57 Pa.Cmwlth. 569, 427 A.2d 283 (1981), the court construed the Clean Streams Law, 35 P.S. § 691.1 et seq. as a “regulatory statute” within the meaning of 42 Pa.C.S.A. § 762. The Commonwealth Court held that the imposition of criminal penalties did not change the statute’s overall character as a statute regulating certain conduct within the state. Id. at 569, 427 A.2d at 286. Therefore, the Commonwealth Court concluded that it had appellate jurisdiction of the appeal.

Presently, 30 Pa.C.S.A. § 2504 is a regulatory statute. The imposition of criminal penalties does not change the statute’s overall character as a statute regulating certain conduct within the state. Therefore, in light of the purpose of the Fish and Boat Code and the application of 42 Pa.C.S.A. § 762, the instant appeal properly belongs in the Commonwealth Court.

Because this appeal presents a novel issue involving the interpretation of a regulatory statute, it should be decided by the appellate court which has been granted exclusive appellate jurisdiction over such matters. Therefore, we transfer this case to the Commonwealth Court, pursuant to 42 Pa.C.S.A. § 5103 and Pa.R.A.P. 751.

Appeal transferred to the Commonwealth Court.

      . Transferring this case to the Commonwealth Court would not put appellant out of court for filing an untimely appeal. The appeal would be treated by the Commonwealth Court as if it were filed on October 5, 1993, the day the appeal was filed in this Court. See 42 Pa.C.S.A. § 5103; Pa.R.A.P. 751.

      . We note that while this Court has affirmed the judgment of sentence issued in a case involving the violation of a regulatory statute, see Commonwealth v. Al Hamilton Contracting Co., 383 Pa.Super. 429, 557 A.2d 15 (1989), the issue of jurisdiction was not discussed.