author: KELLY, Judge:

text:
    645 A.2d 1340
    Willie M. HODGES, Appellee, v. Juan A. RODRIGUEZ, Pennsylvania Financial Responsibility Assigned Claims Plan and Constitution State Service Company. Appeal of PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and Constitution State Service Company, Appellants. Willie M. HODGES, Appellee, v. Juan A. RODRIGUEZ, Pennsylvania Financial Responsibility Assigned Claims Plan and Constitution State Service Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed Aug. 10, 1994.

      Dianne A. Dichter, Philadelphia, for Pa. Financial Responsibility Assigned Claims Plan.
    Martin Stanshine, Philadelphia, for Willie M. Hodges.
    Before KELLY, POPOVICH and HESTER, JJ.
   KELLY, Judge:

In this appeal, we must determine whether 75 Pa.C.S.A. § 1752 barred recovery of uninsured motorist benefits by a person who denied ownership of an inoperable, uninsured vehicle which nonetheless remained registered in that person’s name in Pennsylvania at the time of the accident from which the benefits claim arose. In addition, we are asked to decide whether a person who is eligible to receive uninsured motorist benefits is also entitled to Pa.R.Civ.P. 238 delay damages based upon an evaluation of full compensatory damages. We hold that the trial court properly granted Willie M. Hodges statutory recovery against appellants, Pennsylvania Financial Responsibility Assigned Claims Plan (Assigned Claims Plan) and Constitution State Service Company; and that it properly denied cross-appellant, Mr. Hodges, recovery of Rule 238 delay damages. Thus, we affirm the trial court’s order entering judgment in this matter.

The relevant facts and procedural history of this appeal and cross-appeal are as follows. On the evening of May 29, 1989, pedestrian Hodges was crossing Broad Street by Pike Street in North Philadelphia when he was struck by an uninsured motor vehicle. As a result of this accident, Mr. Hodges sustained severe injuries to his head and to his left leg. Because Mr. Hodges was hit by an uninsured vehicle, he applied to the Assigned Claims Plan for medical and uninsured motorist benefits under 75 Pa.C.S.A. §§ 1751-1757. The Assigned Claims Plan obtained records from the Pennsylvania Department of Transportation indicating that Mr. Hodges was the owner of a motor vehicle registered in his name at the time of the accident for which he seeks benefits. Mr. Hodges admitted that he had once owned the vehicle registered in his name, but that approximately three (3) months prior to the May, 1989 accident, his vehicle was destroyed in another accident. The day after that first accident, according to Mr. Hodges, he sold the vehicle for junk to a man who towed the vehicle to a shop. Mr. Hodges then dropped the insurance coverage on that vehicle. The Assigned Claims Plan denied Mr. Hodges’ claim because it determined that Mr. Hodges had not met the eligibility requirements of the Motor Vehicle Financial Responsibility Law (MVFRL) 75 Pa.C.S.A. § 1701 et seq.

Mr. Hodges filed a complaint against Juan A. Rodriguez and the Assigned Claims Plan on October 31,1990. The Assigned Claims Plan filed preliminary objections, and the trial court issued an order dated January 4. 1991, striking with prejudice those portions of Mr. Hodges’ complaint which demanded interest, attorney’s fees, and costs. An arbitration hearing held on August 27, 1992, resulted in a verdict in favor of Mr. Hodges for the statutory recovery of $15,000.00 in benefits payable by the Assigned Claims Plan. The Assigned Claims Plan filed an appeal. Prior to trial, Mr. Hodges requested that, if the court found in his favor, (1) it render a verdict for the full compensatory damages due him, (2) mold that award to the statutory limit, and (3) assess delay damages upon the full compensatory damages amount. A non-jury trial was held before the Honorable G. Craig Lord on December 18, 1992. On December 21, 1992, the trial court entered a verdict in favor of Mr. Hodges, finding that he was eligible for uninsured motorist benefits under 75 Pa.C.S.A. § 1752 and entitled to recover the statutory limit of $15,000.00 under §§ 1753 and 1754 from the Assigned Claims Plan. On January 4, 1993, the Assigned Claims Plan filed a motion for post-trial relief. On January 8, 1993, Mr. Hodges filed a petition for delay damages under Pa.R.Civ.P. 238. Mr. Hodges filed a cross-motion for post-trial relief on January 15,1993. The Assigned Claims Plan filed its reply to Mr. Hodges’ petition for delay damages on January 21, 1993. The trial court denied Mr. Hodges’ petition for delay damages on April 14, 1993. Mr. Hodges filed an amended cross-motion for post-trial relief on April 23, 1993, adding his request for delay damages based on a full compensatory damage award. The trial court filed its memorandum opinion and order on August 3,1993, denying all post-verdict motions of both parties. This timely appeal and cross-appeal followed.

On appeal, the Assigned Claims Plan raises the following issues for our review:

I. WHETHER THE PLAINTIFF/APPELLEE WAS THE OWNER OF A CURRENTLY REGISTERED AUTOMOBILE AT THE TIME OF THE ACCIDENT?

II. WHETHER THE PLAINTIFF/APPELLEE WAS AN ELIGIBLE CLAIMANT FOR BENEFITS FROM THE ASSIGNED CLAIMS PLAN AT THE TIME OF THE ACCIDENT?

The Assigned Claims Plan’s Brief at 2.

Because the analysis of both issues involves a determination of Mr. Hodges’ eligibility for benefits, we will address the issues together. Initially, we note that the Superior Court’s scope of review is limited when examining the decision of a trial court sitting as fact finder. For our purposes, the findings of a trial court sitting without a jury have the same force, and effect on appeal as a jury’s verdict. Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989); Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 463 A.2d 1017 (1983); Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983). We will reverse the trial court only if its findings are predicated upon an error of law or are unsupported by competent evidence in the record. Id. On review, it is not within our province to find facts or to substitute our judgment for that of the trial court. Rizzo v. Haines, supra. Moreover, the trial court is free to believe all, part, or none of the evidence that is presented, to make all credibility determinations, and to resolve any conflicts in the evidence. Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 411, 595 A.2d 1211, 1214 (1991) (citations omitted). In light of this limited scope of review, we now turn to the Assigned Claims Plan’s assertions.

The Assigned Claims Plan argues that Mr. Hodges is ineligible to receive benefits under Section 175? of the MVFRL because he was the owner of a currently registered motor vehicle at the time of the accident for which he now seeks recovery. In order to decide this issue, we must look to the relevant part of 75 Pa.C.S.A. § 1752 which provides:

(a) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).

75 Pa.C.S.A. § 1752(a)(3). Therefore, Mr. Hodges would be eligible for benefits if he could demonstrate that he did not own a motor vehicle that was required to be registered. See Winkelman v. PFRACP, 418 Pa.Super. 439, 445, 614 A.2d 717, 720 (1992).

At trial, the Assigned Claims Plan established that Mr. Hodges was the title owner of a 1975 Chevrolet registered in his name at the time of the accident for which he seeks benefits. N.T. 12/18/92 at 39-40. Mr. Hodges testified that he had hit a pole while driving the Chevrolet, approximately three (3) months before the May, 1989 accident, rendering the vehicle inoperable. Mr. Hodges testified that the following day he sold the Chevrolet for one hundred dollars ($100.00) to a man named Louis who then had the Chevrolet towed from the accident scene to a shop to use for junk. Mr. Hodges conceded that he did not get a junk title for the Chevrolet, nor did he keep insurance on the vehicle after he had sold it. N.T. 12/18/92 at 25-28.

Relying on Darby v. Daniels, 423 Pa.Super. 100, 620 A.2d 519 (1993), the trial court found that Mr. Hodges’ Chevrolet was no longer a “motor vehicle” as defined by 75 Pa.C.S.A. § 102 of the Motor Vehicle Code because it had been destroyed in the earlier accident. Furthermore, the trial court found that Mr. Hodges was no longer the “owner of a motor vehicle required to be registered” because he had sold the Chevrolet for junk value.

The Assigned Claims Plan asserts that Mr. Hodges cannot be allowed to recover because Mr. Hodges did not provide documentary evidence or independent testimony to support his contentions. We cannot agree.

[O]ur scope of review on a weight of the evidence claim is [also] very limited. We will respect the trial court’s findings with regard to credibility and weight of the evidence unless it can be shown that the [trial] court’s determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence. The traditional standard for a weight of the evidence inquiry is whether the verdict is so contrary to the evidence as to shock one’s sense of justice.

Gemini Equipment v. Pennsy Supply, supra at 413, 595 A.2d at 1215 (citations omitted).

Instantly, the trial court found Mr. Hodges’ testimony regarding the vehicle to be totally credible. Trial Court Opinion filed 8/3/93 at 3. We will not disturb this credibility determination on appeal.

The Assigned Claims Plan cites Kresge v. Keystone Ins. Co., 389 Pa.Super. 548, 567 A.2d 739 (1989) and Allen v. Erie Ins. Co., 369 Pa.Super. 6, 534 A.2d 839 (1987) in support of its argument that this Court does not recognize an exception to the MVFRL for “inoperable,” uninsured, but currently registered vehicles. Nevertheless, those cases are distinguishable from the instant case. First, as the Assigned Claims Plan recognizes, the Kresge and Allen cases involved the application of 75 Pa.C.S.A. § 1714, which precludes recovery of first party benefits by an owner of a currently registered motor vehicle. The concern of this Court in those cases was the high cost of providing first party benefits, the legislature’s attempt through Section 1714 to reduce the number of uninsured motorists consuming the benefits without contributing toward their expense, and the desire to prevent fraud in the aggregate of cases. Kresge v. Keystone Ins. Co., supra. The instant matter involves a different statute, 75 Pa.C.S.A. § 1752, which addresses claimants eligible to receive benefits from the Assigned Claims Plan. The Assigned Claims Plan avers that Mr. Hodges’ failure to properly terminate his registration and ownership of the vehicle before this accident must render Mr. Hodges ineligible for any benefits through the Plan because the “required to be registered” language in Section 1752 is broader than the “currently registered” language of Section 1714. We disagree.

The objective of all statutory interpretation is to ascertain and effectuate legislative intent. Callahan v. Federal Kemper Ins. Co., 390 Pa.Super. 201, 568 A.2d 264 (1989); Key Savings & Loan v. Louis John, Inc., 379 Pa.Super. 226, 549 A.2d 988 (1988), appeal dismissed, 529 Pa. 573, 605 A.2d 1223 (1992); Estate of Osborne, 363 Pa.Super. 200, 525 A.2d 788 (1987); 1 Pa.C.S.A. § 1921(a). The provisions of a statute are to be interpreted, whenever possible, in a manner that gives effect to the entire statute. Consulting Engineers v. Licensure Bd., 522 Pa. 204, 560 A.2d 1375 (1989); Key Savings & Loan v. Louis John, Inc., supra; 1 Pa.C.S.A. § 1921(a). Furthermore, the General Assembly is presumed to have intended to avoid mere surplusage; thus, whenever possible, courts must construe a statute so as to give effect to every word. Key Savings & Loan v. Louis John, Inc., supra at 232, 549 A.2d at 991 (citing Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980)).

Our supreme court has amplified this rule of construction by explaining that where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show that a different legislative intent existed for the two sections. Commonwealth v. Bigelow, 484 Pa. 476, 484, 399 A.2d 392, 395 (1979), quoting Novicki v. O’M ara, 280 Pa. 411, 416, 124 A. 672, [673] (1924) (“A change of language in separate provisions of a statute is prima facie evidence of a change of intent.”). See also Corley v. Commonwealth Board of Probation and Parole, 83 Pa.Commw. 529, 478 A.2d 146 (1984) (applying Bigelow).

Walker v. Roney, 407 Pa.Super. 620, 622-23, 595 A.2d 1318, 1319 (1991), appeal denied, 529 Pa. 658, 604 A.2d 250 (1992); see also Gemini Equipment v. Board of Com’rs, 146 Pa. Cmwlth. 227, 230, 604 A.2d 1233, 1235 (1992), appeal denied, 530 Pa. 667, 610 A.2d 46 (1992).

Instantly, the “required to be registered” wording of 75 Pa.C.S.A. § 1752(a)(3) is different than the “currently registered” wording of 75 Pa.C.S.A. § 1714, which was the basis of the decisions in Kresge v. Keystone Ins. Co., supra, and Allen v. Erie Ins. Co., supra. Additionally, the context of the two sections is different. As previously noted, under Section 1714 of subchapter B, persons who have not contributed to the expense of providing first party benefits are thus precluded from recovering those benefits from another party’s insurance company. Section 1752 of subchapter E, however, precludes recovery of limited statutory benefits from the Assigned Claims Plan by persons who should have been able to recover from an insurance company had their operable vehicle been properly insured. Therefore, Kresge v. Keystone Ins. Co., supra, and Allen v. Erie Ins. Co., supra, and the concerns expressed therein are not controlling here.

Moreover, Kresge v. Keystone Ins. Co., supra, is also distinguishable from the instant matter because the trial court did not believe Kresge’s averments that she had transferred her inoperable, uninsured vehicle to a junkyard before the accident. In the case at bar, the trial court found Mr. Hodges’ testimony to be totally credible. The case of Allen v. Erie Ins. Co., supra, is distinguishable as well because Allen never disputed owning the uninsured registered vehicle in question. He maintained, instead, that he was eligible to recover first party benefits under Sections 1713 and 1714 because his vehicle was not involved in the accident. Here, Mr. Hodges provided credible testimony that he no longer owned the Chevrolet. The trial court ruled in favor of Mr. Hodges and allowed recovery of the statutory maximum, $15,000.00, against the Assigned Claims Plan. The trial court’s decision is not so contrary to the evidence as to shock one’s sense of justice. Thus, we hold, Mr. Hodges is eligible for statutory benefits under 75 Pa.C.S.A. § 1752 and entitled to recover $15,000.00 from the Assigned Claims Plan under 75 Pa.C.S.A. §§ 1753 and 1754.

We now turn to Mr. Hodges’ claims set forth in his cross-appeal as follows:

1. WHETHER THE PLAINTIFF IS ENTITLED TO RULE 238 DELAY DAMAGES IN A LAWSUIT FOR DAMAGES AGAINST THE PENNSYLVANIA ASSIGNED CLAIMS PLAN, WHEN THE BASIS FOR THE VERDICT DEPENDS UPON AN EVALUATION OF PLAINTIFF’S DAMAGES FOR THE PAIN AND SUFFERING CAUSED BY HIS BODILY INJURIES.

2. WHETHER, IN A SUIT FOR DAMAGES AGAINST PENNSYLVANIA ASSIGNED CLAIMS PLAN, BASED UPON AN EVALUATION OF FAIR COMPENSATION FOR PLAINTIFF’S PAIN AND SUFFERING, THE FACT-FINDER SHOULD, AS PER WOODS VS. COMMONWEALTH, DEPARTMENT OF TRANSPORTATION, [531 Pa. 295] 612 A.2nd [sic] 970 (Pa.1992), RENDER A VERDICT STATING A FULL EVALUATION OF PLAINTIFF’S DAMAGES, THEREAFTER HAVING THE COURT REDUCE THOSE DAMAGES TO THE PLAN’S $15,000.00 STATUTORY LIMIT, AND ASSESSING DELAY DAMAGES UPON THE ORIGINAL VERDICT.

Mr. Hodges’ Brief at 3.

The analysis of each issue concerns Mr. Hodges’ eligibility for delay damages; therefore, we will address both claims simultaneously. Initially, we note that Mr. Hodges’ motion for delay damages was not timely filed. Pennsylvania Rule of Civil Procedure 238(c) reads in relevant part as follows:

Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.

(1) Within ten days after the motion is filed, the defendant may answer specifying the grounds for opposing the plaintiffs motion. The averments of the answer shall be deemed denied. If an issue of fact is raised, the court may, in its discretion, hold a hearing before entering an appropriate order.

(2) If the defendant does not oppose the motion, the court shall add the damages for delay to the verdict or decision.

(3) (i) If a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is opposed, a judgment may not be entered until all motions filed under Rule 227.1 and this rule have been decided.

Pa.R.Civ.P. Rule 238(c), 42 Pa.C.S.A.

This Court has previously held that where a Rule 238 motion for delay damages is not timely filed, the issue is not preserved on appeal. Brocklehurst v. Watson, 409 Pa.Super. 1, 597 A.2d 631 (1991), appeal denied, 531 Pa. 644, 612 A.2d 983 (1992) (abuse of discretion for trial court to consider merits of motion for delay damages filed eighteen (18) days after verdict instead of within the ten (10) days specified by the rule). Instantly, the verdict in favor of Mr. Hodges was entered and notice sent pursuant to Pa.R.Civ.P. 236 on December 21, 1992. A letter also dated December 21,1992, from the Honorable G. Craig Lord and addressed to the parties’ attorneys was sent with a copy of the verdict. In that letter, Judge Lord noted that “[a]ny request for delay damages (which I have already preliminarily indicated that I do not believe would be applicable to this case) should be submitted in accordance with the motion procedure specified by Rule 238.” Mr. Hodges’ petition for delay damages was not presented to the Prothonotary to be filed until January 8, 1993. Thus, Mr. Hodges’ motion was filed eighteen (18) days after the verdict, and not within the ten (10) days specified by the rule. Therefore, Mr. Hodges’ claim for delay damages was untimely. Moreover, the claim for delay damages is without merit.

Mr. Hodges asserts that according to the clear language and plain meaning of Pa.R.Civ.P. 238, a plaintiff suing the Assigned Claims Plan for benefits under 75 Pa.C.S.A. §§ 1753 and 1754 is a party seeking monetary relief for bodily injury. As such, Mr. Hodges avers, he is, therefore, entitled to recover delay damages from the Assigned Claims Plan. Upon careful review of the language and purpose of both the MVFRL and Pa.R.Civ.P. 238, we must disagree.

Subchapter E of the MVFRL, entitled the Assigned Claims Plan as set forth in 75 Pa.C.S.A. § 1751 et seq., was enacted by the legislature to provide limited statutory benefits to certain “eligible claimants” injured in an automobile-related accident who are not otherwise entitled to recover insurance benefits. See generally Zeigler v. Constitution State Service, 430 Pa.Super. 284, 634 A.2d 261 (1993); Walker v. Fennell, 426 Pa.Super. 469, 627 A.2d 771 (1993); Jackson v. Travelers Ins. Co., 414 Pa.Super. 336, 606 A.2d 1384 (1992), appeal granted, 533 Pa. 625, 620 A.2d 491 (1993). The Assigned Claims Plan is not an insurance company but an administrative organization that distributes the financial responsibility for certain limited statutory benefits among Pennsylvania’s automobile insurers, as a cost of doing business in Pennsylvania, and through the insurers’ policy holders. Jackson v. Travelers Ins. Co., supra at 338, 606 A.2d at 1385; Westbrook v. Robbins, 416 Pa.Super. 543, 552, 611 A.2d 749, 753 (1992) (en banc) (quoting. Ronca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, p. 78 (1986)). The Plan basically provides eligible claimants the minimum uninsured coverage that should have been carried on any vehicle involved in the accident. Ronaca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance, supra at 76. In order to recover any benefits from the Assigned Claims Plan, a claimant must first satisfy the seven (7) eligibility requirements as set forth in 75 Pa.C.S.A. § 1752. Once a claimant proves eligibility, Sections 1753 and 1754 describe the available benefits. Assigned Claims Plan v. English, 427 Pa.Super. 105, 628 A.2d 847 (1993).

At issue in the instant ease is Section 1752(a)(3), which provides:

§ 1752. Eligible Claimants
(a) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).

75 Pa.C.S.A. § 1752(a)(3). Because the Assigned Claims Plan had sufficient evidence to suggest that Mr. Hodges was the owner of a motor vehicle required to be registered under Chapter 13 at the time of his accident and was, therefore, ineligible to receive benefits under Section 1752, his claim for benefits was denied. Mr. Hodges, at that point, assumed the burden of going forward and proving that he was indeed an eligible claimant. Contrary to Mr. Hodges’ assertion, any “settlement” at that time would have been premature as the Assigned Claims Plan is statutorily constrained from paying benefits to claimants who appear to be ineligible. We have affirmed the trial court’s finding that Mr. Hodges is an eligible claimant. We hold that Mr. Hodges is entitled to receive the maximum statutory benefit of $15,000.00 under 75 Pa.C.S.A. §§ 1753 and 1754. We decline, however, to extend Pa. R.Civ.P. 238 on delay damages to the Assigned Claims Plan.

We recognize that Mr. Hodges’ underlying action would be a personal injury suit against the driver of the vehicle that hit him; the instant case, however, is an action to recover limited statutory benefits. In fact, in order to recover beyond the medical benefits provided under Section 1753 of the MVFRL, an eligible claimant must be “otherwise entitled to recover in an action in tort against a party who has failed to comply with this chapter ...” 75 Pa.C.S.A. § 1754. Even where a claimant is eligible for additional recovery under Section 1754, the maximum benefit available under that provision is $15,000.00. Id.

In his brief Mr. Hodges uses the terms “damages” and “benefits” interchangeably. We do not agree that these concepts are synonymous in this context. Where a statute provides internal definitions, we are bound to construe the statute according to those definitions. 1 Pa.C.S.A. § 1903(a). The Assigned Claims Plan pays benefits to eligible claimants who have sustained damages caused by a third-party tortfeasor. The Assigned Claims Plan is not the tortfeasor in the underlying action, nor does the Plan represent or defend the tortfeasor in these cases. Furthermore, had the legislature intended subchapter E to include a provision for delay damages, it would have inserted one. See Westbrook v. Robbins, 416 Pa.Super. 543, 553, 611 A.2d 749, 754 (1992) (en banc).

This Court has previously determined that neither the Assigned Claims Plan nor an assigned carrier can be held liable for the penalties of interest, costs and attorney’s fees. Westbrook v. Robbins, supra; Williams v. Tuck, 397 Pa.Super. 213, 579 A.2d 1332 (1990). The Westbrook Court arrived at its decision by reasoning that actions against the Assigned Claims Plan do not involve an insurer-insured relationship or a contractual relationship; that the Assigned Claims Plan is a non-profit organization with no incentive to delay claim payment; and that the imposition of these penalties would only serve to deplete the fund. We conclude that this compelling reasoning applies instantly and decline to hold that the legislature intended Pa.R.Civ.P. 238 delay damages to apply to the Assigned Claims Plan.

Mr. Hodges correctly asserts that the purpose of awarding Pa.R.Civ.P. 238 delay damages is to compensate a plaintiff for delay in receiving recovery and to encourage settlement of meritorious cases, thereby relieving the court system of unnecessary litigation. The two cases cited by Mr. Hodges in support of his argument that these delay damages are applicable to the Assigned Claims Plan, however, are distinguishable in law and fact from the instant case.

In the first case cited by Mr. Hodges, Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982), our Supreme Court stated “Rule 238 provides compensation to a plaintiff for delay in receiving the monetary damages owing as a result of a defendant’s tort.” Id. 496 Pa. at 65, 436 A.2d at 154. “The difference upon which the classification rests is that the plaintiffs have been wrongly injured and have suffered financial losses because of the defendants’ action. The losses then become exacerbated by the defendant’s refusal to settle the lawsuit in a timely fashion. The defendants, on the other hand, have suffered no wrong. They, as the tortfeasors, are not unjustly deprived of compensation during the course of pre-trial delays.” Id. at 68-69, 436 A.2d at 156. “[W]hile some defendants may in fact be uninsured, they have nonetheless caused the loss to the plaintiffs by their tortious conduct and owe compensation to their victims.” Id. at 71, 436 A.2d at 157. The Laudenberger Court equated delay damages with prejudgment interest. This Court has already held that the Assigned Claims Plan is not subject to liability for an interest penalty. Westbrook v. Robbins, supra. For this reason and because the Assigned Claims Plan was not the tortfeasor nor the cause of Mr. Hodges’ injuries in this case, we conclude that Laudenberger v. Port Auth. of Allegheny County, supra, supports the argument that the Assigned Claims Plan is not liable for delay damages.

Mr. Hodges also cites Woods v. Commonwealth Department of Transportation, 531 Pa. 295, 612 A.2d 970 (1992) in support of his argument that delay damages are applied in civil actions for bodily injury. Mr. Hodges asserts that “[i]n terms of the purpose of the Woods holding, there is no realistic difference between the situation in Woods and the situation in the instant matter.” Mr. Hodges’ Brief at 16. We must disagree. First, we note that Woods v. Commonwealth Department of Transportation, supra, was a personal injury action in which the Commonwealth was proven to be negligent in causing the plaintiffs injuries. Second, the case fell within the purview of the Sovereign Immunity Act, which places a cap of $250,000.00 in damages available against the Commonwealth when the Commonwealth is proven to have been negligent. 42 Pa. C.S.A. § 8521 et seq. The instant case was not a personal injury action. There was no finding of negligence against the Assigned Claims Plan, nor does the instant action fall within the purview of the Sovereign Immunity Act. The Assigned Claims Plan is not liable for damages but is responsible only for the payment of specific, limited statutory benefits, when a claimant has met all of the requirements for eligibility as set forth in the MVFRL. Because the issue is whether Mr. Hodges is entitled to these statutory limited benefits and not whether the Assigned Claims Plan was a negligent tortfeasor protected, by the Sovereign Immunity Act, the trial court need not engage in the fiction of setting damages and then reducing those damages to the statutory limit.

As this Court has previously noted, Pa.R.Civ.P. 238 applies only to certain actions and does not encompass every action. Temporaries, Inc. v. Krane, 325 Pa.Super. 103, 115, 472 A.2d 668, 674 (1984) (rule not applicable to tortious interference with contract). Instead, the rule has been restricted “to situations where a defendant causes bodily injury, death or property damage.” Rizzo v. Haines, 357 Pa.Super. 57, 67, 515 A.2d 321, 326 (1986) (Popovich, J., dissenting to requirement that attorney pay market rate of interest on wrongfully detained funds) (rule not applicable to claims for legal malpractice in personal injury ease). See also Anchors-tar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120 (1993) (rule not applicable to loss of consortium claim); Colodonato v. Consolidated Rail Corp., 504 Pa. 80, 470 A.2d 475 (1983) (rule not applicable to punitive damages); Oweida v. Tribune-Review Publishing Co., 410 Pa.Super. 112, 599 A.2d 230 (1991), appeal denied, 529 Pa. 670, 605 A.2d 334 (1991) (rule not applicable in libel action); Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117 (1985) (rule not applicable to malicious prosecution); Erie Insurance Exchange v. McGee, 327 Pa.Super. 56, 474 A.2d 1171 (1984) (rule not applicable to uninsured motorist arbitration award); Reliance Universal v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982) (rule not applicable in contract action).

For the foregoing reasons, we hold that Mr. Hodges is eligible to receive statutory benefits under 75 Pa.C.S.A. §§ 1753 and 1754 in the amount of $15,000.00 from the Assigned Claims Plan. We decline, however, to extend Pa. R.Civ.P. 238 delay damages to actions involving subchapter E, the Assigned Claims Plan, under the MVFRL.

Judgment affirmed.

      . We note that police initially suspected Mr. Juan Rodriguez, an uninsured motorist, as the hit and run driver in this accident. Thus, as the alleged tortfeasor; Mr. Rodriguez was a named defendant in Mr. Hodges' complaint. Mr. Rodriguez was later cleared by police, however, as noted in a police report dated August 2, 1989, and submitted as Exhibit P2 at R.R. 85. N.T. 12/18/92 at 38-39. In pertinent part, the Motor .Vehicle Code defines an "uninsured motor vehicle” as a vehicle that is either identified but uninsured or unidentified and, therefore, uninsured. 75 Pa.C.S.A. § 1702(1)(3); see Hatcher v. Travelers Ins. Co., 421 Pa.Super. 225, 617 A.2d 808 (1992); Jackson v. Fin. Resp. Assigned C. Plan, 394 Pa.Super. 274, 575 A.2d 626 (1990). A judgment of nonpros was entered on August 27, 1992, for failure to effectuate service of the complaint on Mr. Rodriguez. The trial court concluded that Mr. Hodges’ failure to serve Mr. Rodriguez with the complaint did not prejudice the Assigned Claims Plan's subrogation rights, because the evidence presented at trial failed to establish even a prima facie case that Mr. Rodriguez was the tortfeasor. Trial Court Opinion dated 8/2/93 at 5-6.

      . Chapter 13 registration requirements state "[n]o person shall drive or move and no owner shall knowingly permit to be driven or moved upon any highway any vehicle which is not registered in this Commonwealth unless the vehicle is exempt from registration.” 75 Pa.C.S.A. § 1301(a).

      . The Motor Vehicle Code defines an owner as ”[a] person, other than a lienholder, having the property right in or title to a vehicle....” 75 Pa.C.S.A. § 102. A motor vehicle is defined as "[a] vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” Id.

      . In Darby, the trial court determined that the appellant, a record owner and last registrant of an uninsured Subaru, was ineligible for benefits under 75 Pa.C.S.A. § 1752(a)(3). Darby v. Daniels, supra. This Court reversed and remanded, holding that appellant was entitled to recover from the Assigned Claims Plan because the Subaru had been destroyed in an accident and sold for scrap, and therefore, appellant was no longer the owner, and the Subaru was no longer a “motor vehicle” as defined by the Motor Vehicle Code. 75 Pa.C.S.A. § 102. Id.

      . The MVFRL defines first party benefits as "[m]edical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa. C.S.A. § 1702.

      . Under Section 1753 "[a]n eligible claimant may recover medical benefits ... up to a maximum of $5,000. No income loss benefit or accidental death benefit shall be payable under this subchapter.” Under Section 1754 “[a]n eligible claimant who has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort against a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury up to $15,000 subject to an aggregate limit for all claims arising out of any one motor vehicle accident of $30,000. If a claimant recovers medical benefits under Section 1753 (relating to benefits available), the amount of medical benefits recovered or recoverable up to $5,000 shall be set off against any amounts recoverable in this section.”

      . We note that the Assigned Claims Plan did not object to the timing of Mr. Hodges’ petition for delay damages in its reply motion filed January 21, 1993. Instead, the Assigned Claims Plan argued that no entitlement to delay damages exists under the MVFRL. Judge Lord denied Mr. Hodges' petition for delay damages in an order filed April 14, 1993, stating no reason for the denial. In its memorandum opinion and order dated August 2, 1993, denying all post-trial motions, the trial court concluded simply that Rule 238 delay damages are not recoverable against the Assigned Claims Plan. Trial Court Opinion at 6.

      . Section 66.31 of Title 31 Insurance states "(a) Rates shall be considered to include amounts required to fund the Assigned Claims Plan.” 31 Pa.Code 66.31(a).

      . The result of the Pennsylvania Supreme Court ruling in Tubner v. State Farm Mut. Auto. Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981) that the Assigned Claims Plan must provide coverage for victims who had no other source of insurance was apparently not anticipated by automobile insurers and was mentioned prominently in subsequent committee hearings as a reason for the greatly increasing cost of insurance premiums. Id. at 70.

      . These sections read as follows:
      § 1753. Benefits available
      An eligible claimant may recover medical benefits, as described in section 1712(1) (relating to availability of benefits), up to a maximum of $5,000. No income loss benefit or accidental death benefit shall be payable under this subchapter.
      § 1754. Additional coverage '
      An eligible claimant who has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort against a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury up to $15,000 subject to an aggregate limit for all claims arising out of any one motor vehicle accident of $30,000. If a claimant recovers medical benefits under section 1753 (relating to benefits available), the amount of medical benefits recovered or recoverable up to $5,000 shall be set off against any amounts recoverable in this section (emphasis added).

      . The remaining eligibility requirements a claimant must meet are as follows: "(1) Is a resident of this Commonwealth. (2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth____ (4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities. (5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage. (6) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident. (7) Is not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident." 75 Pa.C.S.A. § 1752.

      . The MVFRL defines benefits as "[mjedical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa.C.S.A. § 1702.

      . "Damages” is a word of art meaning something paid in recompense for infringement of plaintiff's legal right by defendant’s liability-creating conduct. Miller v. Weller, 288 F.2d 438, 439 (1961), cert. denied, 368 U.S. 829, 82 S.Ct. 51, 7 L.Ed.2d 32 (1961). "Damages” is money compensation payable by a tortfeasor who is liable for injuries caused by his tortious act. Restatement, Second, Torts, Sec. 12A.

      . 75 Pa.C.S.A. § 1752.


source: Caselaw Access Project

author: POPOVICH, Judge;

license: Public Domain

text:
    645 A.2d 1350
    COLT PLUMBING CO., INC., Appellant, v. Peter C. BOISSEAU, Appellee.
    Superior Court of Pennsylvania.
    Argued April 6, 1994.
    Filed Aug. 11, 1994.

      Patti C. Lerda, Swissvale, for appellant.
    Richard B. Druby, Harrisburg, for appellee.
    Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   POPOVICH, Judge;

This case involves an appeal from the order of the Court of Common Pleas of Cumberland County granting the preliminary objections for lack of jurisdiction and venue of the defendant, Peter C. Boisseau, Jr., and dismissing the complaint of the plaintiff appellant, Colt Plumbing Co. We reverse.

On an appeal from an Order sustaining preliminary objections, we accept as true all well-pleaded material facts set forth in the appellant’s complaint and all reasonable inferences which may be drawn from those facts. Whether a state may exercise in personam jurisdiction over a nonresident defendant must be tested against the state’s long arm statute and the due process clause of the fourteenth amendment of the United States Constitution. If jurisdiction may be conferred by the state’s long arm statute, a tribunal must next determine whether the defendant has established minimal contacts with the forum state. Finally, it must be established the assertion of in personam jurisdiction would not violate the “traditional notions of fair play and substantial justice.”

Filipovich v. J.T. Imports Inc., 431 Pa.Super. 552, 637 A.2d 314, 316 (1994) (Citations omitted).

While Pennsylvania’s long-arm statute, 42 Pa.C.S.A. § 5322(a)(4), provides that “[clausing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth” is a basis for personal jurisdiction, “ ‘the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum state.’ ” Kachur v. Yugo America, Inc., 534 Pa. 316, 632 A.2d 1297, 1300 (1993), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 542 (1985). Further, we need to consider whether Peter C. Boisseau, Jr. had sufficient contact with Pennsylvania to justify the exercise of in personam jurisdiction; that is to say, was his connection with Pennsylvania “such that [he] should reasonably anticipate being haled into court there.” Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110, 1114 (1992), citing Burger King Corp., supra.

With the preceding in mind, the record indicates that the plaintiff terminated the defendant’s employment upon discovering that the defendant, contrary to the exclusive employment contract with the plaintiff, operated a business in Virginia in direct competition with the plaintiff, a Pennsylvania corporation. A 4-count complaint was filed seeking damages and injunctive relief on grounds of breach of contract, breach of fiduciary duty and unfair competition taking the form of disparagement, use of trade secrets and confidential information.

In reply, the defendant filed preliminary objections based upon a lack of personal jurisdiction and improper venue, the former of which was premised upon the following assertions:

1. The defendant Peter C. Boisseau, Jr. is an adult individual and a citizen of the State of Virginia, with a residence at 3123 Plymouth Place, Mechanicsville, Virginia 23111.

2. Defendant Boisseau is not a Pennsylvania citizen nor is he domiciled within the Commonwealth of Pennsylvania.

3. Defendant Boisseau has no offices or places of business in Pennsylvania.

4. Defendant Boisseau has no ownership interest in any Pennsylvania business entities.

5. Defendant Boisseau acquires no gross receipts from Pennsylvania customers, either directly or indirectly.

6. Defendant Boisseau has not incurred, nor has been required to pay any taxes to the Commonwealth of Pennsylvania.

7. Defendant Boisseau has no authorized agents to receive service of process in Pennsylvania.

8. With respect to the transaction giving rise to this action, Mr. Boisseau has never traveled to Pennsylvania.

9. Additionally, with respect to the alleged transaction, Defendant Boisseau has never visited the Pennsylvania corporate office of the Plaintiff.

10. With respect to the Plaintiffs alleged employment of the Defendant, Defendant Boisseau never filled out a job application issued by the Plaintiff.

11. In fact, there is no written contract evidencing employment of the Defendant by the Plaintiff. As such, Defendant Boisseau did not execute any contract within the Commonwealth of Pennsylvania.

12. With respect to customers of the Defendant, the Defendant maintained his own client list, with all of those clients being located in Virginia.

13. Defendant Boisseau never received training by the Plaintiff, in Pennsylvania or otherwise.

14. Defendant Boisseau does not have any telephone listing in the Commonwealth of Pennsylvania.

15. Defendant Boisseau does not have any real estate holdings within the Commonwealth of Pennsylvania.

16. Defendant Boisseau has not had any significant outlays to Pennsylvania concerns, including taxes.

17. Defendant Boisseau has never sold Plaintiffs products to any customers in Pennsylvania at any time.

The absence of proper venue was predicated upon Pa.R.Civ.P. 1006. In support thereof, the defendant averred that:

27..... Defendant Boisseau never filled out any job application with the Plaintiff, in Pennsylvania or otherwise.

28. In fact, there is no written contract evidencing Defendant’s employment with the Plaintiff.

29. Any agreement reached between the parties was reached in Virginia.

30. All sales made by the Defendant on behalf of the Plaintiff were made in Virginia.

31. All contracts entered into between the Defendant and his clients to which he sold products were entered into in Virginia.

32. As such, all of Defendant’s sales and records are located in Virginia.

33. Moreover, all of Defendant’s sales records are located in Virginia.

34. At no time did Defendant Boisseau ever travel to Pennsylvania nor did Defendant Boisseau ever visit the Plaintiffs Pennsylvania corporate office.

35. All evidence of Plaintiffs customers, profits, business reputation and market share (i.e., business climate) is located in Virginia.

36. As such, no cause of action arose in Pennsylvania, nor did any transaction or occurrence take place in Pennsylvania out of which this alleged cause of action arose.

The plaintiff filed a response to the defendant’s preliminary objections contending, in pertinent part, that:

1.-2. ...

3. ... Plaintiff avers that Defendant used an office and place of business in Pennsylvania during the time period material to Plaintiffs Complaint. Defendant maintained daily contact with Plaintiffs principal office in Cumberland County, Pennsylvania, and had several of Plaintiffs employees in Pennsylvania assigned to assist Defendant in his business dealings....

4. ... Defendant had a substantial ownership interest in Plaintiffs Profit Sharing Plan located in Pennsylvania....

5. -9. ...

10. It is admitted that Defendant did not complete a standard job application for Plaintiff, although Defendant did complete several job related forms evidencing Defendant’s employment status with Plaintiff, included but not limited to a W-4 Employee’s Withholding Allowance Certificate, Group Insurance Enrollment and Capital Blue Cross of Pennsylvania Blue Shield Application for enrollment____

11. Plaintiff admits that there is no written contract of employment of the Defendant and Plaintiff. By way of further answer, Plaintiff specifically denies that there is no 'written contract evidencing employment of the Defendant by the Plaintiff....

12. It is specifically denied that Defendant maintained his own customer list in Virginia. Plaintiff provided Defendant with a complete list of Plaintiffs customers in Virginia at the time Defendant became employed by Plaintiff. Plaintiff maintained a list of Plaintiffs customers in Virginia on a monthly basis during the period of Defendant’s employment with Plaintiff....

13. It is specifically denied that Defendant never received training by Plaintiff. Plaintiff provided Defendant with instruction on Plaintiffs operating procedures and Plaintiff provided on-going assistance to Defendant during Defendant’s employment with Plaintiff.

14. ... Defendant did utilize a telephone listing at the Plaintiffs office in Pennsylvania, which Virginia customers routinely called to place orders with Plaintiff. Defendant routinely distributed business cards and information with Plaintiffs 800 telephone number in Pennsylvania for Virginia customers to call and place orders and correspond with Defendant as needed....

15. -20. ...

21. Defendant’s actions purposefully availed himself of the privilege of conducting business within the forum state, involving the benefits and protection of Pennsylvania Laws.

22. -28. ...

29. ... All agreements between the parties were not reached in Virginia, but many agreements were made in Pennsylvania via telephone and facsimile communications.

30. It is specifically denied that all sales made by Defendant were made in Virginia. Strict proof to the contrary is demanded at Trial. By way of further response, Plaintiff and its authorized agents received numerous calls in Pennsylvania from Virginia customers, and negotiated sales on Defendant’s behalf over the telephone and facsimile. Defendant had several employees of Plaintiff assigned to him in Pennsylvania to handle sales calls for customers in Virginia and accept messages for Defendant.

31. ...

32. ... Plaintiff maintains sales records and customer lists pertaining to Defendant’s employment in Pennsylvania.

33. -34. ...

35. ... Plaintiff maintains complete records of its customers, profits, and market share concerning its Virginia territory in Pennsylvania. All evidence to this effect is located in its corporate office in Pennsylvania.

36. ... Plaintiff avers that transactions occurred between' the parties on a daily basis at the corporate office in Pennsylvania and Defendant regularly conducted business in the State of Pennsylvania and reaped the benefits and profits from within the Commonwealth of Pennsylvania. 37. ...

What followed was an opinion and order dated September 3, 1993, whereby the defendant’s preliminary objections were granted and the plaintiffs cause of action was dismissed. The basis for the court’s determination was predicated upon the conclusion that, albeit the statutory requirements of Pennsylvania’s long-arm statute had been satisfied (42 Pa.C.S.A. § 5322(a)(4)), the defendant did not have sufficient minimum contacts with Pennsylvania. Also, “[t]o hold Pennsylvania as the proper jurisdiction would inconvenience all other parties to this action” and offend notions of “reasonableness] and fair” play called for by the Due Process Clause of the Fourteenth Amendment. Court Opinion, 9/3/93 at 7.

Lastly, the court ruled that, pursuant to Pa.R.Civ.P. 1006, venue was improper in Cumberland County because the alleged oral contract (“offer”) was consummated (“accepted”) in Virginia. This appeal ensued and raises three issues for our consideration, the first of which claims that the court erred in using an improper standard of review in granting the defendant’s preliminary objections.

More specifically, the plaintiff argues that it produced evidence which the court did not consider as true in support of proper jurisdiction, i.e., 1) defendant’s almost daily contact with the plaintiffs office for almost five years; 2) the exclusive employee status of the defendant in Virginia as sales representative for the plaintiff; and 3) the defendant caused “harm” to the plaintiff in Pennsylvania. The record indicates that the “contacts”, “contract” and “harm” assertions of the plaintiff were considered as true by the court; namely:

After careful consideration of the record in its entirety and in the light most favorable to the plaintiff we do not believe the defendant has sufficient minimum contacts with Pennsylvania to sustain personal jurisdiction. The oral employment contract standing alone is insufficient to establish minimum contacts. The defendant’s only contact with the foreign state in connection with the oral contract has been via telephone. In contemplation of his actual course of employment, it was only considered that the defendant would deal strictly out of Virginia. Additionally, it is admitted that the defendant has not sold any products to Pennsylvania residents.

Court Opinion, 9/3/93 at 6 (Emphasis added).

Therefore, because the court held that the plaintiff had not proven sufficient minimum contacts between the defendant and this jurisdiction, the burden remained with the plaintiff to prove in personam jurisdiction. See Alumbaugh v. Wallace Business Forms, 226 Pa.Super. 511, 313 A.2d 281, 283 (1973). Nonetheless, albeit the court utilized the correct standard in reviewing the appellant’s initial complaint, the result reached — no minimum contacts — is refuted by the record when viewed in light of the applicable law.

For instance, Burger King Corp., supra, dealt with a breach of contract action, instituted by the corporation at Miami headquarters in Florida, against a Michigan franchisee who challenged the Florida court’s jurisdiction as violative of traditional notions of fair play and substantive justice embodied in the Due Process Clause of the Fourteenth Amendment.

• The Federal District Court, sitting in diversity, relied on Florida’s long-arm statute (§ 48.193(l)(g) (Supp.1984)) to exercise personal jurisdiction over Rudzewicz (a Michigan resident) for allegedly breaching his franchisee agreement with Burger King, a Florida corporation, by failing to make required payments in Florida. As a result, Burger King terminated Rudzewicz’s franchise and sought, inter alia, damages awarded following a bench trial totalling $228,875.00.

Rudzewicz’s appeal to the Court of Appeals for the Eleventh Circuit resulted in a reversal of judgment on the ground that “jurisdiction under the[ ] circumstances ... offend[ed] the fundamental fairness which is the touchstone of due process.” Burger King Corp. v. MacShara, 724 F.2d 1505, 1513 (11th Cir.1984). On appeal to the United States Supreme Court, the judgment of the Court of Appeals was reversed. In doing so, the Court made remarks germane to our disposition: to-wit:

... with respect to interstate contractual obligations, we have emphasized that parties who “reached out beyond one state and create continuing relationships and obligations with citizens of another state” are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). See also McGee v. International Life Insurance Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 200-201, 2 L.Ed.2d 223 (1957).
We have noted several reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who “purposefully directs” his activities toward forum residents. A State generally has a “manifest interest” in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Id., at 223, 78 S.Ct. at 201; see also Keeton v. Hustler Magazine, Inc., supra, 465 U.S. [770], at 775, 104 S.Ct. [1473], at 1479 [79 L.Ed.2d 790 (1984) ]. Moreover, where individuals “purposefully derive benefit” from their interstate activities, Kulko v. California Superior Court, 436 U.S. 84, 96, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978), it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because “modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engaged in economic activity,” it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity. McGee v. International Life Insurance Co., supra, 355 U.S., at 223, 78 S.Ct., at 201.
Notwithstanding these considerations, the constitutional touchstone remains whether the defendant purposefully established “minimum contacts” in the forum State. Interna tional Shoe Co. v. Washington, supra, 326 U.S. [310], at 316, 66 S.Ct. [154], at 158 [90 L.Ed. 95 (1945) ].
... “the foreseeability that is critical to due process analysis ... is that the Defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. [World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286], at 297, 100 S.Ct. [559], at 567 [62 L.Ed.2d 490 (1980) ]. In defining when it is that a potential defendant should “reasonably anticipate” out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283 (1958):
“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State. McGee v. International Life Insurance Co., supra, 355 U.S., at 223, 78 S.Ct., at 201; see also Kulko v. California Superior Court, supra, 436 U.S., at 94, n. 7, 98 S.Ct., at 1698, n. 7. Thus where the defendant “deliberately” has engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, 465 U.S., at 781, 104 S.Ct., at 1481, or has created “continuing obligations” between himself and residents from the forum, Travelers Health Assn. v. Virginia, 339 U.S., at 648, 70 S.Ct., at 929, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.

Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor’s efforts are “purposefully directed” toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there. Keeton v. Hustler Magazine, Inc., supra, 465 U.S., at 774-775, 104 S.Ct., at 1478; see also Calder v. Jones, 465 U.S. [783], at 778-790, 104 S.Ct. [1482], at 1486-1487 [79 L.Ed.2d 804 (1984)]; McGee v. International Life Insurance Co., 355 U.S., at 222-223, 78 S.Ct., at 200-201....

471 U.S. at 473-477, 105 S.Ct. at 2182-84, 85 L.Ed.2d 528 (Footnote omitted; emphasis in original).

Applying the principles just recited, the United States Supreme Court found that sufficient “minimum contacts” had been established to require Rudzewicz to be called to account for the injuries sustained by the corporation in Florida. This was so despite the fact that:

... no physical ties to Florida c[ould] be attributed to Rudzewicz other than [his partner’s] brief training course in Miami. Rudzewicz did not maintain offices in Florida and, for all that appears from the record, ha[d] never even visited there. Yet this franchise dispute grew directly out of “a contract which had a substantial connection with that State.” McGee v. International Life Insurance Co., 355 U.S., at 223, 78 S.Ct., at 201 (emphasis added). Eschewing the option of operating an independent local enterprise, Rudzewicz deliberately “reach[ed] out beyond” Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits that would derive from affiliation with a nationwide organization. Travelers Health Assn v. Virginia, 339 U.S., at 647. 70 S.Ct., at 929. Upon arrival, he entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contact with Burger King in Florida. In light of Rudzewicz’ voluntary acceptance of the long-term and exacting regulation of his business from Burger King’s Miami headquarters, the “quality and nature” of his relationship to the company in Florida can in no sense be viewed as “random,” “fortuitous,” or “attenuated.” Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1239; Keeton v. Hustler Magazine, Inc., 465 U.S., at 774, 104 S.Ct., at 1478; World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 299, 100 S.Ct., at 568. Rudzewicz’ refusal to make the contractually required payments in Miami, and his continued use of Burger King’s trademarks and confidential business information after his termination, cause foreseeable injuries to the corporation in Florida. For these reasons it was, at the very least, presumptively reasonable for Rudzewicz to be called to account there for such injuries.

471 U.S. at 479-481,105 S.Ct. at 2185-2187 (Footnote omitted; emphasis in original).

Consistent with the teaching of Burger King Corp., supra, which has been adopted by the Pennsylvania Supreme Court in Letteri, supra, we look beyond the singularity of the contract between the litigants to “the parties’ actual course of dealing” in determining whether the defendant purposefully established minimum contacts within the forum, which is but one factor in assessing the presence of sufficient contacts with the forum state to satisfy the first prong of the in personam jurisdiction of a non-resident defendant. 471 U.S. at 479, 105 S.Ct. at 2185.

As in Burger King Corp., supra, the defendant here has no physical ties to the forum state, maintains no offices personally in Pennsylvania and, as is evident from the pleadings, has never even visited here. Notwithstanding such facts, the plaintiffs cause of action grew directly out of a contract which had substantial connection with this Commonwealth; namely: 1) the parties’ negotiations created a business relationship that operated without incident for five (5) years; 2) the defendant communicated by phone with the plaintiff on a daily basis from Virginia to receive his messages left by Virginia clients, to set up and obtain notice of appointments with said clients left via an “800” number provided by the plaintiff; 3) the plaintiffs confidential information and customer list were accessible to the defendant; and 4) the defendant used an office and place of business in Pennsylvania during his employment; 5) the defendant owned a substantial interest in the plaintiffs profit sharing plan located in Pennsylvania; 6) the defendant completed job-related forms (W-4; insurance enrollment) for the plaintiff; and 7) the defendant took the initiative to secure employment with the Pennsylvania-based plaintiff.

In light of the aforementioned, it cannot be gainsaid that the defendant’s acceptance of the monetary and health-care benefits flowing from his employment for some five (5) years with the plaintiff was in no sense “random,” “fortuitous,” or “attenuated.” Burger King Corp., supra. Further, viewing the allegations of the plaintiffs (as the non-moving party) as true, the defendant’s breach of his exclusive sales contract with the plaintiff and expropriation of confidential information and revenues from potential customers in Virginia and other assets belonging to the plaintiff for his own benefit, including but not limited to the plaintiffs copyright sales catalog while in Virginia, caused foreseeable injuries to the corporation in Pennsylvania, which the plaintiff has a right to prove in a court of law.

For these reasons it is, at the very least, presumptively reasonable for Boisseau to be called to account here for such injuries. Burger King Corp., supra, 471 U.S. at 480, 105 S.Ct. at 2186. Accord Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 346 A.2d 798 (1975). Therefore, it is not unreasonable to find that the defendant should anticipate being haled into court in Pennsylvania to defend against the claims made. Id.

Next, we wish to respond to the court’s holding that it would not be “reasonable and fair” to the defendant to find jurisdiction in Pennsylvania because:

The alleged breach occurred in Virginia, the defendant is residing in Virginia, and all the customers of the defendant who might be potential witnesses are found in Virginia.

Court Opinion, 9/3/93 at 7. This forum non conveniens approach by the court is facially appealing but substantively flawed in that the determination of the situs of the cause of action is gauged by where the injury is inflicted and not where the act(s) leading to it were committed. See Emert v. Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964). This translates into acknowledging that the defendant’s conduct caused economic harm to the plaintiff in Pennsylvania as a result of the alleged breach of contract in Virginia by the loss of revenue. Wiedeman, supra.

The substance of the court’s remaining argument is that the case should be heard in Virginia, the location of the breach and the place where witnesses for the defendant and the defendant reside. “However, ... it is the plaintiff’s] ... burden to prove the cause and extent of the [damages] so that any inconvenience or expense will be borne by it and not [Boisseau].” Beatrice Foods Co. v. Proctor & Schwartz, 309 Pa.Super. 351, 455 A.2d 646, 650 (1982). Moreover, this breach of contract case is one where both parties will have witnesses for whom Cumberland County, Pennsylvania, will be as convenient and accessible as any location within Virginia. Id. And as noted by Burger King Corp., “ ‘modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,’ it usually will not be unfair to subject him to the burdens of litigation in another forum for disputes relating to such activity.” 471 U.S. at 474, 105 S.Ct. at 2183, quoting McGee v. International Life Insurance Co., supra, 355 U.S. at 223, 78 S.Ct. at 201,

Our decision today should not be interpreted as a precedent that will subject any non-resident employee of a Pennsylvania corporation to the jurisdiction of our courts, for each case will be decided on its particular facts. Burger King Corp., supra; Letteri, supra; Barber v. Pittsburgh Coming Corp., 317 Pa.Super. 285, 464 A.2d 323, 331 (1983); Wiedeman, supra.

Having concluded that the court’s finding that no minimum contacts was inconsistent with the facts viewed in a light most favorable to the non-moving-party/plaintiff s case, and notions of fair play and substantial justice of the Due Process Clause of the Fourteenth Amendment are not violated, the need to address the remaining two issues of the appellant is rendered moot with our reversal of the order granting the defendant’s preliminary objections and dismissing plaintiffs complaint.

Order reversed, case remanded and jurisdiction is relinquished.

      . The second prong necessitates that imposing in personam jurisdiction does not violate traditional principles of "fair play and substantial justice.” Burger King Corp., supra, held that this aspect of the test had been met by the corporation and Rudzewicz was subject to jurisdiction of the Florida courts.


author: HUDOCK, Judge:

text:
    645 A.2d 1358
    Raymond M. BLEDAY, Individually, Raymond M. Bleday, DPM, a Professional Corporation and Central Pennsylvania Podiatry Associates, Appellants, v. OUM GROUP, Pacific Insurance Company, Continental Insurance, Continental Insurance Health Care and Riley & Fleming Adjuster, Ltd., Appellees.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed Aug. 11, 1994.

      Frederick B. Gieg, Jr., Altoona, for appellants.
    Richard S. Dorfzaun, Pittsburgh, for OUM Group, Pacific Ins. and Continental Ins., appellees.
    Timothy R. Smith, Pittsburgh, for Riley & Fleming, appellee.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

Raymond M. Bleday, DPM, and Central Pennsylvania Podiatry Associates (Appellants) appeal from the order entered by the trial court sustaining the preliminary objections in the nature of a demurrer of OUM Group, Pacific Insurance, Continental Insurance, Continental Insurance Health Care (Insurers) and of Riley & Fleming Adjusters, Ltd. (Adjusters). We affirm.

Appellants secured malpractice insurance through Insurers for the period of February, 1988, through February, 1989. The policy obtained by Appellants contained the following premium:

The company shall have the right and duty to defend any suit against the insured seeking damages because of such injury even if any of the allegations of the suit are groundless, false or fraudulent. The company may make such investigation and settlement of any claim or suit as it deems expedient. (Emphasis in original)

Within the time period covered by said policy, Tracey Worchesky (Worchesky) instituted an action against Appellants. The nature of her claim was that she had to seek corrective surgery from another podiatrist because she never properly recovered from surgery performed by Dr. Bleday on February 2, 1988. Insurers investigated the claim made by Worchesky through Adjusters. On December 7, 1990, over the objection of Appellants, Insurers settled Worchesky’s claim for $10,000. Insurers stated that the settlement was a result of a business decision which was made to “avoid the cost of litigation and the uncertainties of a jury trial.” Letter to Appellants, 12/7/90, at p. 1.

On or about April 5, 1993, Appellants filed a complaint against Insurers and Adjusters. Count I of the complaint, sounding in breach of contract and negligence, alleges that Insurers breached their duty of good faith to Appellants by settling Worchesky’s claim without their consent. In Count II, Appellants aver that Adjusters failed to adjust Worchesky’s claim within their best interests. With respect to damages, Appellants assert that they will be subjected to increased insurance premiums, loss of earnings, and harm to reputation since Dr. Bleday’s name will be placed on the National Physician Data Bank, a list of doctors who have been involved in malpractice actions. On April 23, 1993, Insurers and Adjusters each filed preliminary objections in the nature of a demurrer. The trial court granted the objections on November 3, 1993. This direct appeal .followed.

On appeal, Appellant first presents a novel issue for our review. We must decide whether an insured has a cause of action against its insurer when, contrary to the demands of the insured, the insurer settles a claim within the insurance policy’s limits, and where the policy empowers the insurer to make settlement of any claim as it “deems expedient”. Appellants assert that Insurers, despite the policy language “deems expedient”, have the duty to act in good faith in the handling of its claims, and that, since Insurers settled the claim made by Worchesky in bad faith, a breach of such good faith duty has occurred, giving rise to a cause of action against Insurers.

Our standard of review is as follows:

On review of an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint, our review is plenary. We must determine if the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint.

Pysh v. Security Pacific Housing Service, 416 Pa.Super. 64, 69, 610 A.2d 973, 975 (1992), alloc. den., 533 Pa. 625, 620 A.2d 491 (1993) (citations omitted).

Although there is widespread use of “deems expedient” provisions of the type found in the case herein, there is little or no case law interpreting such phrase in Pennsylvania. After a thorough review of case law from other jurisdictions, we conclude that, although judicial deference must be given to the decision of an insurance company to settle a claim within the policy limits, a claim for bad faith may, in limited circumstances, be asserted against the insurance company notwithstanding a “deems expedient” provision. A “deems expedient” provision in an insurance contract cannot be interpreted to convey to an insurance company an absolute right to settle a claim within the policy limits if such settlement was contrary to the intent and expectation of the parties. However, after a thorough review of the complaint filed by Appellants, we find that Appellants did not sufficiently plead a cause of action in bad faith against Insurers, and, thus, the trial court properly granted Insurers’ preliminary objections.

Several jurisdictions hold that a “deems expedient” provision in an insurance contract conveys to an insurer an absolute right to settle the claims of the insured within the insurance policy limits. In Marginian v. Allstate Insurance Company, 18 Ohio St.3d 345, 481 N.E.2d 600 (1985), the appellee, after his car was involved in two separate accidents, notified his insurer, Allstate Insurance Company, and instructed his insurer not to pay anything on either claim since both accidents were the result of the negligence of the other party. Notwithstanding the appellee’s directive, the insurer, relying on the policy’s language, settled both claims within the monetary limits of the appellee’s policy. The appellee instituted an action against the insurer alleging that the insurance company was liable to him since it failed to act in good faith with respect to the settlement of his claims. On appeal, the Ohio Supreme Court was presented with the novel issue, “whether an insured has a cause of action against its insurer when, contrary to the wishes of the insured, the insurer settles claims lodged against the insured within the monetary limits of the insured’s policy, and where the policy empowers the insurer to settle claims as it feels appropriate.” Marginian, 481 N.E.2d at 601. In reviewing the language of the insurance policy, the Ohio Supreme Court determined that the parties “expressly and unambiguously” contracted for the precise language so used. Thus, the Court, recognizing that it could not judicially enlarge a private contract, held, “that where a contract of insurance provides that the insurer may, as it deems appropriate, settle any claim or action brought against its insured, a cause of action alleging a breach of the insurer’s duty of good faith will not lie where the insurer has settled such claim within the monetary limits of the insured’s policy.” Id. at 603.

Likewise, in Feliberty v. Damon, 72 N.Y.2d 112, 531 N.Y.S.2d 778, 527 N,E.2d 261 (1988), a medical malpractice panel found that the appellant committed malpractice and was liable in the amount of $743,000. Before judgment was entered and without his consent, the appellant’s insurer settled the claim for $700,000, an amount within the policy limits. The appellant sought compensatory and punitive damages from the insurer, asserting that his reputation was damaged as a result of the settlement. The New York court, in granting the insurer’s motion to dismiss the complaint, held that the insurance company had an absolute right to settle under the language of the policy. Feliberty, 527 N.E.2d at 262. The language of the policy specified that the “company may make such investigation and such settlement of any claim or suit as it deems expedient.” Id. In upholding the dismissal of the complaint, and thus finding that the insurance company had an absolute right to settle the claim, the Court of Appeals stressed that, “[ujnlike bargained-for, and presumably costlier, policy provisions contemplating the insured’s consent to settlement, here the parties’ contract unambiguously gave the insurer the unconditioned right to settle any claim without [the appellant’s] consent.” Id. (citation omitted).

However, our further examination of the decisions of other jurisdictions reveals that a bad faith claim may be exerted against an insurance company despite a “deems expedient” provision. Such a cause of action was permitted in Mitchum v. Hudgens, 533 So.2d 194 (Ala.1988). In Mitchum, St. Paul Fire and Marine Insurance Company, through its attorney, reached a settlement agreement in a medical malpractice claim against Dr. Mitchum, its insured. Said settlement was within the limits of Mitchum’s policy. Mitchum’s liability

insurance provided that the insurer had the right “to investigate, negotiate and settle any suit or claim if we think that’s appropriate.” Mitchum, 533 So.2d at 196. Dr. Mitchum instituted this lawsuit alleging that the settlement, which was made without his permission, caused him to lose his liability insurance and, as alleged by. Mitchum, caused damage to his professional reputation. Regarding the issue of settlement without the insured’s consent, the Supreme Court of Alabama found that, under the language of the policy, the insurer had the exclusive right to make a settlement, within the policy limits, of any claim brought against the insured. Id. However, the Court stressed that this right to settlement is not an arbitrary right. “The right given by contract, still requires that the insurer make an investigation, consider the desires or instructions of the insured and that the settlement not be made in bad faith.” Id. at 197 (quoting 7C J. Appleman, Insurance Law and Practice, § 4711 (3d ed. 1983)).

In Shuster v. South Broward Hospital, 591 So.2d 174 (1992), a case similar to the case herein, the Supreme Court of Florida, recognizing an insurer’s discretion to make settlements, has defined limited circumstances wherein a bad faith claim may be established. In Shuster, the insured physician instituted a common law bad faith action against his insurer alleging that the insurer acted in bad faith when it settled three claims against the insured without his consent. With respect to damages, the insured alleged that he lost his ability to maintain malpractice insurance, that his reputation was damaged, and that he suffered from mental distress. Like the case herein, the insured’s policy contained a “deems expedient” provision.

In interpreting the impact of this phrase, the Court opined:

The language of the provision is clear and the insured was put on notice that the agreement granted the insurer the exclusive authority to control settlement and to be guided by its own self-interest when settling the claim for amounts within the policy limits. The obvious intent behind placing the provision in the agreement was to grant the insurer the authority to decide whether to settle or defend the claim based on its own self-interest, and this authority includes settling for the nuisance value of the claim. Therefore, we interpret the provision as granting the insurer the discretion to settle cases for amounts within the policy limits, regardless of whether the claim is frivolous or not. The parties have expressly contracted with respect to the subject matter and this Court declines to rewrite the policy when the insurer merely exercises its rights under the agreement.

Shuster, 591 So.2d at 176-77 (citations omitted). However, the Court further stressed that every contract that is entered into requires the good faith performance of its provisions, and, thus, the “deems expedient” provision is not absolute. The Court so reasoned given the well-settled law that in construing contracts, the intent and expectation of the parties must be given consideration. Id. at 177. With this in mind, the Court, in dicta, posited two situations wherein an insurer can act against the intent of the parties, and hence, in bad faith. First, in a situation where there are multiple parties to a lawsuit, a “deems expedient” clause will not protect an insurer who indiscriminately settles with one or more of the parties for the full amount of the policy, and, thus, exposes the insured to an excess judgment from the remaining parties to the law suit. Id. Second, despite a “deems expedient” provision, a bad faith action may be maintained against an insurer when the insurer settles a claim without regard to the fact that it may be barring a counterclaim of the insured. “Again, in contrast to the right to settle a claim within the policy limits without considering the impact of higher premiums or damage to the insured’s reputation, we do not believe the language of the contract would indicate, nor do we believe it would have been the intent of the parties, that the insured give up his or her right to a counterclaim by entering into the agreement.” Id.

Based on the facts in the case herein, we find that Appellants have not sufficiently pled a cause of action in bad faith. First, there is nothing of record to indicate that Appellants did not freely negotiate the terms of this insurance contract. In their complaint, Appellants merely allege damages which are speculative. We cannot find, in a situation where the insured freely enters into an insurance contract with “deems expedient” language, that an insurer has settled a claim in bad faith when these types of damages may occur prospectively. We further add that in all malpractice cases, these types of speculative damages are always possible. We believe, as the Supreme Court of Florida did in Shuster, that something more is required to maintain a cause of action for bad faith when a claim is settled within the policy limits. However, we leave for another day to define what circumstances constitute bad faith; it is enough to say that they are not present in the instant case.

In their next claim, Appellants allege that Adjusters breached their fiduciary duty to them when they settled the underlying malpractice claim. We do not agree, and thus hold that the trial court properly granted Adjusters’ preliminary objections. In order for Appellants to maintain a cause of action against Adjusters, Appellants were required to show that a contractual relationship existed between the parties. In Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272, 264 A.2d 668 (1970), our Supreme Court stated that adjusters owe a duty of performance to their principals, the insurance companies, however, this duty does not serve to create a contractual obligation between the adjusters and the insured. An adjuster cannot be liable on a contract in which it never assumed. Thus, in the case herein, we cannot find Adjusters liable to Appellants because Adjusters owed no contractual duty to them. See also McCormick v. Yorktowne Mutual Insurance Co., 15 Pa.D. & C.3d 99 (1980) (since the insured was unable to show a contract with adjusters, no action could be maintained against them by insured for bad faith or fraud).

Order affirmed.

      . As one of the grounds for objecting to the settlement, Appellants assert that Worchesky, at no time, submitted an expert report to support her claim of injury. The only expert report was secured by Adjusters, and it stated that Dr. Bleday was not negligent.

      . Appellant asserts that he invested $25,000 in the appeal process concerning the placement of his name on the National Physician Data Bank.

      . The insurer issued a policy to the appellee which contained, in pertinent part, the following language
      "[Allstate] will defend a person insured if sued as the result of a covered auto accident. This defense will be supplied even if the suit is groundless, false or fraudulent. We will defend that person at our own expense, with counsel of our choice and, may settle any claim or suit if we feel this is appropriate."

        Marginian, 481 N.E.2d at 602.

      . We note that the Ohio Supreme Court was careful to distinguish the facts in Marginian from a situation where an insurer fails to settle a claim within the insured’s policy. In those situations, the Court recognized that a bad faith cause of action against the insurer could be maintained when, as a result of its failure to settle, an insured was exposed to a judgment in excess of its insurance policy. Id. at 603.


author: BROSKY, Judge.

text:
    645 A.2d 1363
    Sheryl LEE, Appellant v. John CARNEY.
    Superior Court of Pennsylvania.
    Argued June 15, 1994.
    Filed Aug. 15, 1994.
    George C. Entenmann, Pittsburgh, for appellant.
    Gregory Whitney, Pittsburgh, for appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This appeal is from the Order of October 6, 1993, directing appellant to fulfill her obligation under the Order of consent of October 27, 1992, to pay appellee fifteen hundred dollars ($1,500.00).

Appellant contests the subject matter jurisdiction of the trial court to enter the Order of October 6, 1993, challenges appellee’s right to enforce the earlier Order of consent of October 27, 1992, and contends that the prices she paid for certain items damaged or not returned to her should have been allowed to set off her obligation to pay the fifteen hundred dollars ($1,500.00). We affirm.

The trial court has summarized the factual background in its Opinion written pursuant to Pa.R.App.P. 1925(a) as follows:

In October of 1992, [appellant] filed a Petition for Protection from Abuse. On October 27, 1992, a consent order was entered by the parties. The order provided inter alia that [appellant] would pay $1,500 to [appellee] when she received her 1992 Income Tax Refund in March, 1993, and [appellant] was to pick up various household items from their residence described on a list attached to the order. On June 16, 1993, [appellee] presented a Petition to Enforce Order as [appellant] had allegedly failed to turn over the money. A hearing was scheduled for October 6, 1993. After hearing, the court entered an order for [appellant] to pay [appellee] the $1,500 within thirty days. [Appellant] has now appealed.

Opinion, p. [1] (unnumbered).

The purpose of the Protection from Abuse Act (the Act), 23 Pa.C.S.A. § 6101 et seq., is to protect victims of domestic violence from the perpetrators of such abuse. See Weir v. Weir, 428 Pa.Super. 515, 525, 631 A.2d 650, 654 (1993) (purpose of Act “is to provide spouses, household members and intimate partners and children with immediate temporary protection from abuse”) and Snyder v. Snyder, 427 Pa.Super. 494, 504, 629 A.2d 977, 981 (1993) (primary goal of Act is to “advance prevention of physical and sexual abuse”). Appellant maintains that requiring a victim to pay money to the perpetrator of the abuse runs contrary to this general purpose and, moreover, is not among the eight enumerated types of relief authorized by law. See 23 Pa.C.S.A. § 6108. Consequently, appellant argues, the trial court had no subject matter jurisdiction to enter its Order of October 6, 1993, even though the required payment of the fifteen hundred dollars ($1,500.00) by appellant to appellee was part of a consent Order.

It is true that the payment of money by a victim of abuse to the perpetrator thereof is not one of the enumerated forms of relief designated by Section 6108. However, Section 6108 prefaces these enumerations with the following statement:

(a) General rule. — The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children. The order or agreement may include....

Section 6108(a). (Emphasis supplied). This section tells us several things. First, the use of the word “may” indicates that the trial court has the discretion to choose the appropriate remedy or remedies. Snyder, supra. Secondly, it appears that the Act contemplates consent Orders such as the one at hand by the use of the phrase “any consent agreement”.

Although at first blush it appears rather odd that a protection from abuse Order would require a victim pay money to the perpetrator of the abuse, we do not believe that such a requirement runs afoul of the purpose of the Act. Appellant wished protection from further abuse by appellee. Her payment of the fifteen hundred dollars ($1,500.00) to him, under the circumstances, may have worked to serve this very purpose. Moreover, the provision for the payment of money by appellant to appellee was part of a consent Order. The record reveals that appellant was counselled at the time of the entry of the consent Order and made no objection to any of its provisions. The record also reveals the absence of any fraud or mistake.

In Sarsfield v. Sarsfield, 251 Pa.Super. 516. 380 A.2d 899 (1977), this court, in passing upon the validity of Consent-Orders, quoted with approval a portion of the Opinion of the trial court:

‘In view of both counsels’ representation to this court that they were proposing a consent order, and, in view of their colloquy with their clients which appears on record, this court accepted and signed their consent order. Thereafter, no objection was made thereto by either counsel or either party to the litigation although there was an opportunity to do so. Thus, the parties should be bound by their agreement and the corresponding reflective consent order signed by this court.’

At 522, 380 A.2d at 901. By the terms of the consent Order in Sarsfield, the trial court dismissed certain claims for unproven arrearages and directed the appellant to pay other arrearages and to abide by the terms of the post-nuptial agreement. The Sarsfield court then reaffirmed the validity of the consent Order entered by the trial court as follows:

‘A decree entered by consent of the parties is so conclusive that it will be reviewed only on a showing that an objecting party’s consent was obtained by fraud or that it was based upon a mutual mistake.’

Id., quoting Baran v. Baran, 166 Pa.Super. 532, 537, 72 A.2d 623 (1950). As we noted earlier, appellant was counselled at the time of the entry of the consent' Order and voiced no objection to any of its provisions, and the record is devoid of any indicia of fraud or mistake.

As an appellate court, we do not judge the parties’ wisdom in choosing mutually agreed upon terms which they seek to incorporate into an enforceable Order of court to terminate an abusive situation. When the Order succeeds in terminating the abuse, the purpose of the Act has been fulfilled. The trial court therefore did not lack subject matter jurisdiction to enforce this provision of the consent Order.

In the event we find the trial court competent to enforce the provision of the consent Order requiring appellant to pay fifteen hundred dollars ($1,500.00) to appellee, appellant argues, alternatively, that the trial court cannot enforce this provision in any event because appellee, himself, is in violation of the consent Order in that he has continued to harass and annoy appellant. Apparently, appellant filed a Petition for contempt against appellee in this regard. The record indicates that this proceeding is before another member of the trial court and was continued generally pending the final outcome of underlying summary criminal charges before a district justice. Thus, since the matter of appellee’s contempt proceeding for allegedly violating the provisions of the consent Order remains unadjudicated, he cannot be said to have violated the terms of the Order. Moreover, the only matter before the trial court was appellee’s Petition to enforce the consent Order. Additionally, the consent Order does not stipulate that appellant may disregard her obligation to pay the fifteen hundred dollars ($1,500.00) to appellee if he breaches the terms of the Order.

Lastly, appellant argues that in the event the trial court was competent to enforce the consent Order, she should be allowed a set-off of at least nine hundred twenty-two dollars ($922.00) which she allegedly paid for items of furnishings which appellee was required to return to her as part of the consent Order. Paragraph number ten of the consent Order of October 27, 1992, provides in relevant part:

Plaintiff [appellant] is granted leave to present a petition, with appropriate notice to defendant [appellee], to the prevailing Family Division Motions’ Judge to request recovery of out-of-pocket losses. The Petition shall include an exhibit itemizing all claimed out-of-pocket losses, copies of all bills and estimates of repair, and an order scheduling a hearing before a Family Division arbitration panel at the convenience of the Court.

The record shows that appellant has not complied with the directive of Paragraph number ten of the consent Order. She has failed to present the necessary Petition to the court. Moreover, even absent the required Petition, her testimony at the hearing on appellee’s Petition to enforce consisted of bare allegations of losses and estimates therefor without supporting documentation.

Order affirmed.