author: PER CURIAM:

text:
    445 A.2d 834
    COMMONWEALTH of Pennsylvania v. Dolores Rose PAVLOCAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed May 14, 1982.

      Ross S. Bash, Delmont, for appellant.
    Patrick H. Mahady, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

On September 16, 1978, appellant, Dolores Rose Pavlocak, was traveling east on U.S. Route 30 in Westmoreland County, Pennsylvania, when her automobile, traveling at 50 m.p.h., went through a red light and collided with an automobile operated by Patricia Marie Long at an intersection commonly referred to as “Mountain View”. Mrs. Long was lawfully traveling across Route 30 on an intersecting road with a green light. Shortly after the collision, Patricia Marie Long was pronounced dead as a result of injuries sustained as a result of the impact. A subsequent blood sample extracted from appellant at Westmoreland Hospital, showed a blood alcohol content of 0.11%. Appellant was charged with driving under the influence of alcohol, homicide by vehicle, and involuntary manslaughter. Immediately prior to trial, the Commonwealth moved for a nolle prosse as to the charge of involuntary manslaughter, and the lower court dismissed that charge with prejudice. A jury deadlocked on the charge of driving while intoxicated, but returned a verdict of guilty on the charge of homicide by vehicle.

Appellant filed timely motions for a new trial and in arrest of judgment, which were denied by the lower court on January 15, 1980. On February 22, 1980, appellant was sentenced to imprisonment for a period of six to twelve months.

Appellant initially attacks the constitutionality of the statute charging homicide by vehicle, Act of July 17, 1976, P.L. 162, No. 81, 75 Pa. C.S.A. Section 3732. This issue has been decided by our Supreme Court in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980). Recently, this Court, sitting en banc, further refined the level of culpability embraced by Section 3732 of the Pennsylvania Motor Vehicle Code. Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982).

On the basis of Field, supra, and Koch, supra, we affirm appellant’s conviction of homicide by vehicle. Although the lower court did not charge the jury in complete conformity with Field, supra, and Koch, supra, we find that the lower court’s charge, in fact, required the Commonwealth to sustain a stricter burden of proof. In the instant case, the lower court charged that the jury must find, beyond a reasonable doubt, “.. . that the defendant was operating a vehicle in violation of either driving under the influence of alcohol and/or failure to stop for a steady red indication of a traffic control signal, and that the defendant’s acts in violating the law were a direct cause of Mrs. Long’s death.”

Appellant asserts various other errors allegedly committed by the lower court during her trial by jury. Following our full review of the record, we conclude that the lower court has fully and adequately addressed and disposed of these issues.

However, appellant also contends that it was error for the lower court to interrogate her at the sentencing hearing concerning the assertion of her constitutional right to remain silent, and to thereafter rely on her silence as the basis of the court’s sentence of imprisonment. Following the denial of appellant’s Motion for a New Trial and Motion in Arrest of Judgment on January 15,1980, this Court filed its decision in Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). Appellant then filed a Petition for Reconsideration before the Court en banc, which was denied. On the basis of Barone, supra, appellant’s counsel advised her not to waive her rights against self-incrimination at the sentencing hearing on February 22, 1980, since he felt that she would ultimately be entitled to a new trial. The lower court was attempting to question appellant concerning her whereabouts immediately prior to the accident on September 16,1978. Specifically, the lower court attempted to question appellant as to why the blood sample showed a blood alcohol content of 0.11% at 8:30 a. m. on a Saturday morning. However, on advice of her counsel, appellant asserted her Fifth Amendment right against self-incrimination. The lower court then stated:

“I’m deeply concerned. One of the major things in sentencings I must take into consideration, what are the circumstances surrounding this accident and if you’re going to refuse to tell me on the advise of counsel I want you to know whole-heartedly I have nothing—I have no alternative but to assume you have something to hide from me.”

In its opinion in support of the sentence imposed, the lower court stated, “The testimony indicates that at one point the sentencing Judge perplexed by the defendant’s failure to take the stand indicated that perhaps this could be resolved by sentencing the defendant to a maximum imprisonment of five years and then after all appeals were silent to entertain a petition to reduce the sentence if the same were warranted. Obviously this route was not pursued and the sentencing Judge did not penalize the defendant in his sentence when she reasserted her Fifth Amendment right to remain silent after a recess, but sentenced her, in fact, to a very light sentence under all the circumstances in this case to six to twelve months imprisonment at Muncy.”

However, our review of the record indicates that the lower court did, in part, rely upon appellant’s assertion of her right against self-incrimination in its expression of the reasons underlying the sentence of six to twelve months imprisonment. The court stated:

“.. . since the defendant has not testified I could only assume that there is something to—not only one of the things I can assume is perhaps she has something to hide as to whether or not it was intentional or not or whether she was so careless that she didn’t really care one way or the other.. . .
I don’t know whether her conduct was excusable and since she has not given me her version I can assume that perhaps it was not excusable under the circumstances....
Because of the nature of the case, that is of the drinking and the early hours which I can assume because of the .11 and 8:30 on a Saturday morning that perhaps there is a drinking problem that perhaps this may reoccur. And I have pointed out because the defendant didn’t take the stand....
I must take this stand because I don’t know whether this matter could reoccur or not. I’m looking ahead in my own head because the defendant has not given her version just as likely as it may or may not because I don’t know what her version is as to where she was and what her circumstances were that particular day...”

On the basis of these expressed reasons, we find that the lower court improperly penalized the appellant for asserting her constitutional right against self-incrimination.

In Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771, 780 (1977), the Court held that the constitutional privilege against self-incrimination is not extinguished or “waived” by conviction. The court stated:

“After conviction, direct appeal and collateral remedies available to an individual may result in a new trial. It is apparent, then, that the conviction does not eliminate the possibility that an individual will later be prosecuted for the crime about which he is asked to testify. Accordingly, the weight of authority permits a witness whose conviction has not been finalized on direct appeal to invoke the privilege against self-incrimination and refuse to testify about the subject matter which formed the basis of his conviction. [Citations omitted] ...
Appellant argues that a witness whose conviction is final but is seeking collateral relief cannot invoke the privilege against self-incrimination. We conclude that the privilege is not adequately protected by such a mechanistic rule.” See also Commonwealth v. Davenport, 453 Pa. 235, 239-40 n.4, 308 A.2d 85, 87 n.4 (1973); Commonwealth v. Garland, 475 Pa. 389, 380 A.2d 777 (1977).

Under the circumstances of this case, appellant was entitled to assert her privilege against self-incrimination and the lower court could not expressly penalize her for so doing. It is inevitable that a sentencing Judge will formulate his own silent conclusions concerning why a convicted defendant refuses to discuss the incidents of a crime at the sentencing hearing. However, the lower court should not expressly rely on such silence as the basis of the sentence imposed.

Conviction affirmed and matter remanded to the jurisdiction of the lower court for resentencing consistent with the opinion.

      . According to Field, supra, 490 Pa. 525, 417 A.2d at 163, and Koch, supra, plurality opinion at page 6, the Commonwealth must prove, beyond a reasonable doubt, that “the death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision ...”

      . This decision has, in effect, been reversed by Field, supra and Koch, supra.


source: Caselaw Access Project

license: Public Domain

text:
    445 A.2d 837
    Frank VAN AMERINGEN, t/d/b/a Golden Triangle Coal Co., Appellant, v. ARCADIA COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed May 14, 1982.

      William J. Martin, Pittsburgh, for appellant.
    D. R. Tomb, Jr., Indiana, for appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   PER CURIAM:

The order from which the appeal has been filed in this case is a decision in favor of defendant entered following trial without jury of an action in assumpsit. The decision was filed on September 12,1980; and a notice of appeal was filed by the plaintiff, appellant herein, on October 4, 1980. In the interim, no exceptions were filed to the trial court’s decision; and judgment was not entered on the trial court’s decision. Under these circumstances, it is clear that a final, appealable order has not been entered. The appeal, therefore, must be quashed.

The controlling principle will be found in Pa.R.C.P. No. 1038(d) and (e), where it is provided as follows:

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, arrest of judgment or to remove a nonsuit may be filed.
(e) The prothonotary shall, on praecipe, enter final judgment on the decision if no exceptions have been filed within the ten (10) day period .... (emphasis added).

A failure to file exceptions, as required by Pa.R. C.P. No. 1038(d), constitutes a waiver of errors which might have been raised; and an appeal from a decision to which no exceptions have been filed must be quashed. Matczak v. Matczak, 275 Pa.Super. 164, 418 A.2d 663 (1980); Gibson v. Miller, 265 Pa.Super. 597, 602, 402 A.2d 1033, 1036 (1979); Blake v. Mayo Nursing and Convalescing Home, Inc., 245 Pa.Super. 274, 369 A.2d 400 (1976). See also and compare Houston-Starr Company v. Virginia Mansions Apartments, Inc., 295 Pa.Super. 480, 441 A.2d 1334 (1982) (appeal from decree in equity quashed where exceptions not filed as required by Pa.R.C.P. No. 1518). The need for such a rule is readily apparent. It assures that the trial court will have an opportunity to consider the averments of error made by a party and, if meritorious, to correct the same before an appeal is filed. Compliance is also essential to insure meaningful appellate review.

Appeal quashed.


author: VAN der VOORT, Judge:

text:
    445 A.2d 1214
    COMMONWEALTH of Pennsylvania v. John M. MAZZOCHETTI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 12, 1980.
    Filed April 2, 1982.

      Peter T. Campana, Williamsport, for appellant.
    Elwood R. Harding, Jr., Assistant District Attorney, Bloomsburg, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is a consolidated appeal involving No. 144-1977, Columbia County, appealed at No. 2125 October Term 1979 and No. 134-1979, Columbia County, appealed at No. 2126 October Term 1979. The appeals are unrelated.

I. No. 2125 October Term, 1979.

Judge J. W. Myers, sitting without a jury, found appellant guilty of possession of marijuana and cocaine; and possession of marijuana with intent to deliver. After the denial of post-trial motions, appellant was sentenced to pay the costs of prosecution; to pay a fine of $2,000; and to undergo imprisonment for one to three years. He has filed this appeal, raising the four following arguments:

1. the case should have been dismissed upon Rule 1100(a)(2) as it was not brought to trial within 180 days after the filing of the complaint;

2. the evidence was insufficient to sustain the guilty verdicts;

3. the court improperly denied appellant’s application for a representative sample of the alleged controlled substance for independent testing; and

4. Judge Myers improperly denied appellant’s request to disqualify himself as trial judge.

Due to our resolution of appellant’s first contention, we need not discuss his other three arguments at this time.

The complaint was filed on December 28, 1976. Under Rule 1100 the 180 day-period to bring appellant to trial expired on June 26, 1977. Trial commenced on March 15, 1978. On February 3, 1977, when the case was called for a preliminary hearing, appellant was represented by Attorneys Alan Ellis and Franklin E. Kepner. At that time he and both attorneys signed the following document:

I, John Michael Mazzochetti, do hereby, upon the advice of counsel, Alan Ellis and Franklin E. Kepner, waive the 180 day trial requirement imposed by Pennsylvania Rule of Criminal Procedure 1100 and do further consent to a trial in my case arising under Complaint No. C-856-1976, filed in the office of Justice of the Peace Nickolas Piazza, of Magisterial District No. 26-302, at any time before or after the expiration of said period.

On May 11, 1977 prior to a hearing on a motion to suppress, counsel for appellant, with the Commonwealth concurring, advised the court that Rule 1100 had been waived. (N.T. 5/11/77, pp. 4-5). Appellant, appellee and the court refer to a later application to dismiss supposedly filed sometime after November 2, 1977 by successor counsel. No such petition is contained in the record as we find it before us. Nor does the docket entry page reflect that such a petition was ever filed. Furthermore, there is no discussion whatsoever dealing with such a petition contained in the notes of testimony. The only indications on the record that such a motion was presented is a one sentence order dated November 18, 1977 dismissing such a petition and a two paragraph discussion contained in the lower court’s opinion disposing of post-trial motions.

On the current state of the record, we are unable to consider appellant’s claim. The alleged Rule 1100 petition not appearing anywhere in the record or in the notes of testimony can not be reviewed. An appellate court must decide a case on the basis of facts of record and not on the allegations of fact contained in appellate briefs. Marine Bank v. Huhta, 279 Pa.Super. 130, 420 A.2d 1066 (1980); Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980). See Commonwealth v. Wareham, 256 Pa.Super. 23, 389 A.2d 581 (1978).

Therefore, we must remand this case to the lower court, first to determine whether such motion to dismiss was ever presented; and second, if it was presented, to have the record completed to include such. See Commonwealth v. Scott, 276 Pa.Super. 478, 419 A.2d 558 (1980); Commonwealth v. Walsh, 252 Pa.Super. 111, 380 A.2d 1307 (1977). We retain jurisdiction to decide this appeal on the merits after the record has been completed.

II. No. 2126 October Term 1979.

Appellant was found guilty in a non-jury trial of possession of marijuana and cocaine with intent to deliver. Post-trial motions were denied and appellant was sentenced. Appellant here appeals from that judgment of sentence. Appellant presents three issues to this court:

1) Whether the search warrant relating to the search of appellant’s premises was issued without a showing of probable cause?

2) Whether a nighttime search of appellant’s premises and automobile was proper?

3) Whether the trial court erred in limiting cross-examination of a state police trooper concerning an informant?

1. The affidavit of probable cause accompanying the warrant required an additional page. According to the affiant, a confidential informant had a conversation with one Buckley. Buckley stated that he and one Andrezze would be going to appellant’s residence to buy a quantity of marijuana. The two would be traveling in a black Jeep with blue flames on the doors driven by Buckley. The informant indicated that Andrezze would be dropped off at his (Andrezze’s) home in Bloomsburg, Pennsylvania. According to Buckley, appellant claimed to have “a large amount” of marijuana for sale.

Subsequently, the affiant observed such a Jeep near appellant’s residence traveling away from such residence. Two males occupied the vehicle; the passenger fitted the description of Andrezze. The Jeep proceeded toward Bloomsburg. Upon request of the State Police, Bloomsburg police stopped the Jeep and determined the driver was Buckley. No one else occupied the Jeep; the affiant did not see anyone leave the Jeep prior to discontinuing his surveillance of the vehicle.

The affidavit stated that the informant had been at appellant’s residence on two previous occasions within the prior month and on one of those occasions he observed a garbage bag containing marijuana. A second informant indicated that appellant was involved in large sales of marijuana and other drugs.

The first informant was claimed to have been involved in an investigation which led to the arrest of three individuals for drug-related activities which resulted in the confiscation of large quantities of drugs. According to the affidavit such informer had supplied accurate information concerning drug trafficking in Columbia and Luzerne Counties. The affidavit concluded that appellant had a reputation of drug dealing including a conviction in Florida in 1974 and one in Columbia County resulting from an arrest in December 1976. The affiant, without specifying what information he received stated he had received information from a local police officer relative to appellant’s drug trafficking.

Appellant argues that the affidavit was insufficient to establish probable cause because the reliability of the informant was not established and that much of the information supplied amounted to double hearsay.

To support a search warrant, an affidavit must provide a magistrate with sufficient information to persuade a reasonable person that there is probable cause for a search. While mere suspicion or conjecture is insufficient, “it is only the probability and not a prima facie showing that is required.” Commonwealth v. Minton, 288 Pa.Super. 381, 385, 432 A.2d 212, 214 (1981) (cites deleted). Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978). In reviewing an affidavit of probable cause we must consider it in its entirety, Commonwealth v. Bryant, 247 Pa.Super. 386, 372 A.2d 880 (1977), though a court may consider individual allegations. For example, a court may look to facts not closely related in time; and facts obtained from an informant. Minton, 288 Pa.Superior Ct. 394, 432 A.2d at 216.

Where an affiant relies on information from a confidential informant, the district justice must be apprised of: first, the informant’s basis for concluding that a suspect possessed the illicit drugs; and second, the affiant’s reasons for believing the informant to be reliable. Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335, 1338 (1980); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975). As to the first part of the test appellant complains that the affiant relied on hearsay based on hearsay; that the informant relied on what Buckley told him and Buckley in part relied on what the appellant indicated to him.

“[W]hen a magistrate receives an affidavit which contains hearsay upon hearsay, he need not categorically reject this double hearsay information. Rather, he is called upon to evaluate this information as well as all other information in the affidavit in order to determine whether it can be reasonably inferred ‘that the informant had gained his information in a reliable way.’ ” United States v. Smith, 462 F.2d 456, 459 (8th Cir. 1972) (citations omitted.)

Kaschik, 235 Pa.Super. at 394, 344 A.2d 519. The court there went on to find that the informant’s information had been gained in a reliable way as both links of the double hearsay chain were statements against the declarant’s penal interest.

Contrary to appellant’s interpretation of Buckley’s statement, we find such was against his penal interest. There can be no doubt that appellant’s alleged declaration that he had “a large amount” of marijuana for sale was against his penal interests, especially if relayed to the authorities. Appellant tends to overlook Buckley’s claim that he was going to consúmate a narcotics purchase with appellant and instead focuses on Buckley’s statement regarding his planned route. Buckley’s route is more pertinent to the second prong of the test. Buckley’s desire to buy marijuana is definitely a statement against his interest, since if related to the police, he himself could have become a target of prosecution. Therefore we find the informer had a sufficient basis for his information.

As to the second prong of the test the magistrate must consider four factors: “(1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by any other source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip?” Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973) quoted approvingly in In re Burton, 259 Pa.Super. 20, 23, 393 A.2d 696 (1978). “It is not necessary that all four factors be present before the warrant may issue, (citations omitted) Nor will the absence of any ... automatically preclude a finding that a substantial basis exists for crediting the hearsay.” Id.

Applying the above to this case we make the following observation. While the state police were not able to corroborate whether Buckley intended to purchase drugs from appellant, they were able, by surveillance of the Jeep, to determine that the informant had conversed with Buckley, otherwise the informant while able to identify the Jeep and its occupants, could not have known its route. Therefore we find that the information was corroborated by this surveillance. Also appellant’s prior “criminal record reveals prior criminal conduct similar to the offense in question, [which] is a factor to be considered ... in determining whether the informant’s information is indeed reliable.” Commonwealth v. Herron, 243 Pa.Super. 319, 334, 365 A.2d 871 (1976). Finally while the claim of the affiant that the “informant has been involved in an investigation which led to the arrest of three subjects and confiscations of large quantities” of drugs may be somewhat ambiguous and un-, specific, we find that the affidavit read as a whole does adequately support the affiant’s belief that the informant was reliable.

2. Appellant argues that the search warrant was executed at night time without an adequate showing of “reasonable cause” for a night time search.

Rule 2005(e), Pennsylvania Rules of Criminal Procedure provides:

Each search warrant shall:

(e) direct that the warrant be served in the daytime unless otherwise authorized provided that for purposes of the Rules of Chapter 2000, the term “daytime” shall be used to mean the hours of 6 a. m. to 10 p. m.;

The search warrant was obtained at approximately 9:30 P.M. (N.T. Suppression, p. 13). The search commenced at 9:35 P.M. (N.T. Suppression, p. 13) and concluded at approximately 10:45 P.M. (N.T. Suppression, p. 20). The search warrant was read and explained to appellant at 9:40 P.M. (N.T. Suppression, pp. 9, 54).

We disagree with appellant that this was a non-daytime search under Rule 2005. The rule requires the warrant be served between the hours of 6:00 A.M. and 10:00 P.M. The search warrant in this case was served before 10:00 P.M. though the search extended thereafter. Rules of Criminal Procedure are not to be applied so as to result in an absurdity. Lower Merion Tp. v. Schenk, 247 Pa.Super. 494, 372 A.2d 934 (1977). The rule places the emphasis on the time when the warrant is served not when the search is completed. To hold that “served” means the completion of the search would result in ridiculous situations. Therefore we need not address the propriety of issuing a night time search warrant in this case. The comment to the rule explicitly permits a warrant authorizing a night time search be served in the daytime.

3. Appellant finally complains that the suppression court “unlawfully curtailed his right” to cross examine a state trooper regarding the informer’s prior record of informing. As we find the affidavit demonstrates the informant’s reliability without relying upon prior information received from the informant, we need not address appellant’s complaint. If the court did err, it was harmless beyond a reasonable doubt.

Appeal at No. 2125 October Term 1979 is remanded for proceedings not inconsistent with this Opinion.

Judgment of sentence appealed at No. 2126 October Term 1979 is affirmed.

CAVANAUGH, J., concurs in the result.

      . “Defendant contends that the Court erred by failing to provide him with a hearing on a motion to dismiss under Pa.R.Crim.P. No. 1100. In our view, however, the motion was properly dismissed without hearing.

        The record in this case includes a valid Rule 1100 Waiver executed by the Defendant. There was, accordingly, no basis upon which to compel Commonwealth to establish an exclusion under Rule 1100 at a hearing. Furthermore, the Defendant’s motion set forth no factual basis supporting the contention that the waiver was invalid. Under the circumstances, the motion was properly dismissed.” (Opinion pp. 2-3)

      . Actually this amounts to triple hearsay as the affiant relied on what the informant was told by Buckley regarding what appellant said. This clarification has no effect upon our resolution of appellant’s contention.

      . Appellant claims the search of his car could not be justified by the “plain view” doctrine, as the police were not legally in a position to view the contents of the car as the search warrant was defective. As we find the warrant properly issued we need not address this contention.

      . For instance, a warrant served during daylight or in the early evening with respects to premises and items requiring an extended search and/or inventory may require the search to run beyond 10:00 P.M., requiring under appellant’s theory reasonable cause for a night time search.


author: POPOVICH, Judge:

text:
    445 A.2d 1219
    COMMONWEALTH of Pennsylvania v. James J. RIEBOW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1982.
    Filed April 12, 1982.
    Reconsideration Denied June 15, 1982.
    Mark E. Kogan, Philadelphia, for appellant.
    David Dacosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

Following a non-jury trial, appellant, James J. Riebow, was found guilty of robbery. Post-verdict motions were denied, and, on February 11, 1981, appellant was sentenced to serve a term of imprisonment of 3% to 7 years. Appellant then filed a notice of appeal with this court on March 16,1981. Because the appeal was not timely filed, we quash.

Pursuant to Pa.R.App.P. 903(a), a notice of appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Our court is without authority to enlarge the time for filing a notice of appeal, and is required to construe strictly the thirty day limitation. Pa.R.App.P. 105(b); Commonwealth v. Molyneaux, 277 Pa. Super. 264, 419 A.2d 763 (1980); Hesson v. Weinrebe, 288 Pa.Super. 216, 431 A.2d 1015 (1981).

In the instant case, the judgment of sentence was entered on the docket on February 11, 1981, and appellant was advised that if he desired to appeal his judgment of sentence, he must do so within thirty days. Appellant did not file a notice of appeal until March 16, 1981, thirty-three days following the judgment of sentence; hence, we must quash the appeal as being untimely.

Appeal quashed.


author: BROSKY, Judge:

text:
    445 A.2d 1220
    COMMONWEALTH ex rel. Annette A. ANTOUN v. Frederic G. ANTOUN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1981.
    Filed May 14, 1982.

      Frederic G. Antoun, Harrisburg, appellant, in pro. per.
    Arthur L. Goldberg, Harrisburg, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

This is a support case. On August 13, 1979, Annette Antoun filed a complaint for support on behalf of the parties’ two children, ages fourteen and ten. On January 4, 1980, a hearing was held before the Honorable William Lipsitt. No testimony was taken. On that same date, Judge Lipsitt entered an order directing appellant to pay the sum of $40 per week to Annette Antoun as support for the two minor children. In April, 1981, Annette Antoun notified the Domestic Relations Office for Dauphin County that appellant had failed to make several of the support payments. A contempt citation was issued, and a hearing was held June 11, 1981 before Judge Lipsitt. At that time, appellant was in arrears in the amount of $1,520. No testimony was taken at the hearing. After the hearing, Judge Lipsitt entered the following order:

ORDER
AND NOW, June 11, 1981, after hearing in the above captioned matter the court directs the following:
1) Ten dollars per week for each child, to-wit, Jonathan M. and Lisa A. Antoun, shall be paid by Frederick G. Antoun and the checks mailed directly to the Holy Name of Jesus Church, Allentown Boulevard, Harrisburg.
2) Ten dollars per week for each of the said children shall be paid to Annette Antoun as of July 1, 1981.
The above amount payable to the Holy Name of Jesus Church shall be attributed to arrearages; when the arrearages have been paid the Court will consider a new support order.

It is from the above order that appellant has taken this appeal.

Appellant contends that the court below erred in entering the June 11,1981 order, on the ground that it misapprehended Annette Antoun’s financial circumstances while disregarding evidence of appellant’s financial situation.

The court below stated in its opinion that the June 11, 1981 order was fashioned in an attempt to

[rjeach a solution and avoid holding a member of the bar [appellant] in contempt. . . The wife-petitioner . . . expressing a reluctance to have a jail sentence imposed for violation of the January 4, 1980 order suggested a modification which was formalized as the order of the court handed down on June 11, 1981.
The court further stated that
Mr. Antoun has argued that he is destitute, had an income tax loss in 1980 and his wife is more able to keep the children with her income than is he. Although he has an exaggerated notion of the wealth of Mrs. Antoun, even if his contentions have any validity, Mr. Antoun cannot escape his obligations as father .... [T]he amount of support required of Mr. Antoun . .. could be easily met from his income.

We hold that the court below abused its discretion in not taking testimony at the June 11, 1981 hearing. Although both parties were present at the June 11, 1981 hearing, neither was represented by counsel, and no attempt was made to conduct a formal hearing. Appellant raised many matters which were not properly a part of the proceeding, and much of what was said amounted to slurs made by each party about the other.

No testimony was taken under oath. There were no exhibits properly introduced or made a part of the record. On the basis of the court’s stated wish to resolve the matter and to avoid holding appellant in contempt, the court entered its order without the benefit of properly taken testimony or exhibits. Even though the June 11, 1981 hearing was technically a contempt proceeding, the court nonetheless should have taken testimony regarding appellant’s income, expenses, and the amount of support he had paid, as well as his reasons for failing to comply with the January, 1980 order and for not petitioning for a modification of the order.

In Commonwealth of Pennsylvania ex rel. Stone v. Stone, 293 Pa.Super. 427, 439 A.2d 185 (1981), we reversed and remanded for a full evidentiary hearing on the merits in a situation in which a support order was entered pursuant to a hearing at which no testimony was taken under oath and no exhibits made a part of the record. See also Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa.Super. 283, 406 A.2d 805 (1979).

Our review here is limited to a determination of whether there was sufficient evidence to sustain the court below or whether that court was guilty of an abuse of discretion. Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 407 A.2d 389 (1979). Since no testimony was taken under oath and no evidence properly introduced and made a part of the record, we find that the court below abused its discretion. For these reasons, we must reverse and remand for a full evidentiary hearing on the merits.

Reversed and remanded for proceedings consistent with this opinion.


author: BECK, Judge:

text:
    445 A.2d 1222
    Christine T. HABECKER and Harry L. Habecker, her husband, Appellants, v. NATIONWIDE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed May 14, 1982.

      Lee C. Swartz, Harrisburg, for appellants.
    Mary Jane Forbes, Harrisburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

This appeal from a motion granting summary judgment to the insurer appellee presents an issue of statutory construction involving the time span over which an insurer will be liable for “replacement services” payments provided under Section 202(c) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.202(c).

Again, this court is asked to interpret ambiguous language in the No-Fault Act. “Replacement services loss” is defined as “expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family if he had not been injured.” 40 P.S. § 1009.103. Section 202(c) provides that “[replacement services loss ... shall be provided up to a daily maximum of twenty-five dollars ($25) for an aggregate period of one year.”

The appellant insured, Christine T. Habacker, contends that she suffered serious injury in an automobile accident. As a result of her injury, she was unable to perform her usual housework. She hired a housekeeper initially on a daily basis and then for one or two days each week. The insurer reimbursed her for housekeeping expenses incurred during the twelve months after her accident. However, her injuries were long lasting. Even after a year from the date of the accident, she continued to need replacement services. The insurer, however, refused her requests for further reimbursements.

The trial court granted summary judgment to the insurer finding that the statute required replacement services payments for only one calendar year from the date of the accident. The appellant contends that under the No-Fault Act, she is entitled to reimbursement for three hundred sixty-five days of such services, even when these replacement services days occur more than a year after her injuries. We agree with the appellant and accordingly reverse.

This case requires this Court to construe for the first time the meaning of the phrase “daily maximum of twenty-five dollars ($25) for an aggregate period of one year.” (emphasis added). If the word “aggregate” was not included in the statutory language, it would be clear that reimbursement would be limited to a single one year stretch of time. However, the inclusion of the word “aggregate” raises an ambiguity as to what the phrase means and what the Legislature intended.

Under the Statutory Construction Act of 1972, we are required to construe statutory words and phrases “according to rules of grammar and according to their common or approved usage.” 1 Pa.C.S.A. § 1903; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). The term “aggregate,” used as an adjective, means “formed by a collection of units or particles into a body, mass, or amount...” Webster’s Third New International Dictionary, 41. See Estate of J. Henry Miller, Deceased, 110 Pa.Super. 384, 386; 168 A. 807 (1933). This word, therefore, can only modify a noun denoting something made up of two or more parts. In this statute, “aggregate” modifies “period,” which is also modified by the prepositional phrase “of one year.” Appellee contends that the phrase “period of one year” means a single, continuous stretch of time of 365 days’ duration. This contention on its face is foreclosed by the Legislature’s use of the term “aggregate,” which requires the relevant period to be a collection of two or more specific quantities of time.

If the phrase “period of one year” is interpreted to mean such a single continuous stretch of time, the word “aggregate” would have no diseemable meaning. Appellee in effect asks the Court to interpret the words “aggregate period of one year” to read simply “period of one year.” If the legislators had meant that insureds should be eligible for replacement services for a single one year stretch of time, they could have simply stated that the insured would be eligible for replacement services for a period of one year. Appellee implicitly recognizes this weakness in his argument when he contends that the word “aggregate” as used here serves solely to “emphasize that payments are payable only to the extent they are incurred within one year.” (Appellee’s Brief, p. 8.) Such an interpretation of “aggregate” is inconsistent with accepted definitions of that word.

In the alternative, appellee argues that the Court should construe the statutory language so that the word “aggregate” modifies the phrase “[Replacement services loss” instead of the phrase “period of one year.” Since the word “aggregate,” as positioned in Section 202(c), clearly does not modify “[Replacement services loss,” we must reject that suggestion. Thus, appellee’s suggestions either do violence to the plain meaning of the adjective “aggregate,” or to the simple grammatical positioning of the word “aggregate” in the statutory phrase at issue.

Other portions of the Statutory Construction Act also support our view that the statute should be read, as appellants suggest, to mean that replacement services benefits should be available to her for an aggregate period of 365 days.

First, where a statute is unclear, as here, we are bound to consider legislative purpose. 1 Pa.C.S.A. §§ 1921(a), 1921(b); Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1980).

One of the stated purposes of the No-Fault Act was to achieve the “maximum feasible restoration of all individuals injured in motor vehicle accidents on Commonwealth highways....,” and to provide a “low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims ... so that every victim has the opportunity to: (A) receive prompt and comprehensive professional treatment;, and (B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.” 40 P.S. §§ 1009.102(a)(3), 1009.102(a)(9).

Appellee does not suggest, nor does the record support the conclusion that it would not be feasible for it to provide replacement services at the statutory daily level for an aggregate period of 365 days. Indeed, we note that the New Jersey no fault statute, the Automobile Reparation Reform Act of 1972, provides a daily maximum of $12.00 for such expenses payable “during the life of the injured person,” subject to a total limit of $4,380.00 for any one person for any one accident. N.J.S.A. 39:6A-4(c).

In addition, in construing this particular provision of the No-Fault Act, we are also guided by the principle of statutory construction that presumes that the Legislature did not intend a result that is “absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1). Under the interpretation urged by appellee, the replacement services provision would discriminate against victims like appellant, who needed replacement services for a few days a week, for a period longer than one year from the date of her injuries. Appellant would, under this proposed reading, be entitled to only a small portion of the maximum allowable for replacement services loss. In contrast, a hypothetical victim whose recovery period was a year or less might recover all replacement services loss, even though the dollar amount was much greater than the appellant herein was entitled to collect. Because this hypothetical victim suffered all her replacement services loss within a year of the accident, she would be entitled to more benefits than the appellant herein, who over several years might require the same amount of replacement services. Such a disparity in treatment between victims who have suffered the same loss is clearly unreasonable.

Furthermore, the construction favored by appellee is also unreasonable in that it departs in at least three ways from the statutory scheme of the Act.

(a) Under the No-Fault Act, “replacement services loss,” with “allowable expenses,” “work loss,” and “survivor’s losses,” constitute basic loss benefits. 40 P.S. § 1009.202. Limitations for aspects of basis loss coverage are defined in Section 202. For “allowable expenses” (disposition of remains), “work loss,” and “survivor’s losses,” the legislative pattern defined limits in terms of dollar máximums, i.e. not more than $1500 for allowable expenses, not more than $15,000 for work loss, not more than $5,000 for survivor’s loss. There is no indication that the Legislature intended to break this established pattern based on dollar máximums when it came to replacement services. We therefore resolve the inherent ambiguity in the language of Section 202(c) in favor of maintaining the pattern of basic loss benefits.

(b) If the Legislature had intended to impose the kind of temporal limitation that appellee advocates with regard to recovery for replacement services loss, it would have specified the precise time period relevant for the purposes of replacement services loss. In fact, the statute is silent on when such a time period should begin. If this Court accepted the view that the phrase at issue referred to a single stretch of time encompassing one calendar year, we would next have to decide when the calendar year period begins to run against the victim. For the words of the statute do not specify whether the calendar year period begins at the time when the injury occurs, at the time when the victim incurs his or her first replacement services loss, or at the time when the first replacement services expense claim is submitted to the insurer. This statutory silence on the time when the benefit year would begin to run becomes explicable, however, if one concludes that the Legislature intended to provide replacement services not for a particular duration of time with a specific beginning and end but for an aggregate of 365 days when these services were reasonably and actually incurred.

(c) Appellee’s interpretation of the provision is not congruent with the comparable provisions concerning survivor’s loss benefits. “Replacement services loss” refers by definition to “expenses reasonably . . . incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family, if he had not been injured.” These expenses, subject to a maximum daily amount and the temporal limitations at issue here, must be incurred during the lifetime of the victim. If the victim dies, either at the time of the accident, or subsequently, from injuries incurred in the accident, survivor’s loss benefits, subject to a stated dollar maximum, permit recovery inter alia for “expenses reasonably incurred by a survivor or survivors in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit....” This aspect of “survivor’s loss” is indistinguishable from the definition of “replacement services loss” except that it applies to the services a victim would have performed for the survivor or survivors but for his or her death. Brandon v. Erie Insurance Exchange, 264 Pa.Super. 258, 260, 399 A.2d 765, 766 (1978). If appellee is correct, benefits traceable to the same basic replacement services expenses would be subject to a temporal maximum if the victim lives, and a dollar maximum if the victim dies. Thus, a person who was unemployed or retired, or a non-wage earner, with the kind of injury suffered in this case, would be entitled to less for replacement services loss during her lifetime, than some survivors could conceivably have received if the victim had died of her injuries. It is hardly reasonable to suppose that the Legislature would have intended such an incongruous result.

In addition, the Statutory Construction Act disfavors surplusage. This Act requires that “[ejvery statute shall be construed, if possible, to give effect to all its provisions,” 1 Pa.C.S.A. § 1921(a), and permits the presumption that the Legislature “intends the entire statute to be effective and certain,” 1 Pa.C.S.A. § 1922(2). The Legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws. Courts must therefore construe a statute, if possible, so as to give effect to every word. Commonwealth v. Driscoll, 485 Pa. 95, 401 A.2d 312 (1979); Masland v. Bachman, 473 Pa. 280, 291, 374 A.2d 517, 522 (1977); Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963); Pa. Ind. for Blind and Handicapped v. Larson, 50 Pa.Cmwlth. 95, 411 A.2d 1305 (1980).

The Legislature chose the word “aggregate” to modify “period” in the phrase “aggregate period of one year.” It is apparent that the use of this adjective is perfectly compatible with one common interpretation of the word “year,” a quantity of time amounting to 365 days. In contrast, to interpret the word “year” to mean a single span of time, as in “a calendar year,” is to render the word “aggregate” meaningless. If “period of one year” means “a calendar year,” what does the term “aggregate” add to the statutory sentence? In appellee’s interpretation, replacement services benefits would be available to the insured for one calendar year after an accident. The word “aggregate” would consequently be surplusage.

We also reject appellee’s argument that the “Definitions” section of the Statutory Construction Act, 1 Pa.C. S.A. § 1991, is dispositive of this case. Section 1991 defines the word “year” as “a calendar year.” However, definitions under this section are applicable only when the context does not “clearly indicate otherwise.” 1 Pa.C.S.A. § 1991; Fox Chapel Area School District v. Dunlap, 53 Pa.Cmwlth. 479, 417 A.2d 1329 (1980) (Statutory Construction Act definitions notwithstanding, the words “two years” in the statutory phrase “for two half school terms during a period of two years” held not to mean two calendar years). A review of the problems raised by substituting “calendar year” for “year” demonstrates that the instant case presents a “context [which] clearly indicates otherwise,” and where, consequently, this part of the Statutory Construction Act should not control. The term “calendar year,” unlike the term “year,” unambiguously denotes a continuous 365 days stretch of time. “A calendar year” is not an aggregate, but a single span of time beginning on a specific date and ending 365 days later. The phrase “calendar year,” substituted for the term “year” can not be harmonized with the term “aggregate.” But the term “aggregate,” when used to modify the phrase “period of one year” is intelligible where “year” denotes an amount of time adding up to 365 days. To interpret “year” as “calendar year” is to render the term “aggregate” superfluous.

In addition, the substitution of the term “calendar year” for “year” exacerbates problems encountered in reconciling the Legislature’s use of the term “year” with the term “aggregate.” The term “calendar year” has generally been interpreted to mean the period from January 1 to December 31- of a specific year. Fox Chapel Area School District, supra. Cf. Finch v. Fitzpatrick, Fla., 254 So.2d 203 (1971); Hawksley v. New Hampshire Interscholastic Athletic Association, 111 N.H. 386, 285 A.2d 797 (1971). See, Annot. 5 A.L.R.3d 384 (1966). In the context of this provision, this construction would clearly be an absurdity. Persons injured in January of any year would, under such an interpretation, be eligible for replacement services for a longer time than persons injured in later months of the same year.

Appellee argues that the insured is eligible for replacement service benefits for one calendar year from the date of the injury. This argument would carry more weight if the statute clearly indicated when the replacement services benefits term began to run. Admittedly, some courts have construed the term “calendar year” to mean a period of time following a specific event or date. Annot. 5 A.L.R.3d 384, 392, 393 (1966). However, we must reject that argument here, where the statutory language refers to an “aggregate period of one year” and where the statute does not specify when the relevant one year period is to begin. And once again, the definition of “year” as “a calendar year” running from the date of the injury is inconsistent with the statutory scheme for dollar benefit limitations for other basic losses. It would also have the undesirable effect in some instances of allowing a survivor to collect a larger sum of money attributable to the loss of replacement services than a victim could have recovered if he or she had lived. See, supra.

We decline to accept appellee’s interpretation which violates both long established rules of statutory interpretation, and the stated purposes of the No-Fault Aet. This Act clearly sought to provide reasonable replacement services benefits to compensate for the loss of those ordinary and necessary services that a victim, but for his injuries, would have performed for the benefit of himself or his family. A statute aimed at the “maximum feasible restoration of all individuals injured” should not be read substantially to deprive those individuals unfortunate enough to suffer long term injuries on our highways of needed replacement services benefits.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

      . At the time of the accident, appellants were insured under Nationwide Century II Auto Policy, No. 58B368 884. Endorsement 1232 of that policy, entitled “Pennsylvania Basic Personal Injury Protection (no-fault motor vehicle insurance),” stated that the policy provided “Basic Personal Injury Protection in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act.” The replacement services provision of this endorsement reads: “We will pay reasonable expenses incurred for hiring ordinary and necessary services an insured would have performed—but not for income—for himself and his family had he not been injured. Such expenses must be incurred during the insured’s life-time. In connection with any one accident, we will pay this benefit up to a maximum of $25 per day for a maximum of one year.” The parties impliedly agree that this endorsement assures the minimum replacement services coverage required by the No-Fault Act.

      . This is also the position taken by the trial court, which relied on Easton v. Aetna Life and Cas. Ins. Co., 31 Cumberland L.J. 96, 98 (1980).

      . In addition, we note that where construction of insurance provisions is involved, there is a longstanding policy in this state to construe them liberally in favor of the insured in close or doubtful cases. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 186-188, 401 A.2d 1160, 1162-63 (1979), aff’m, Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629, 633 (1980); 1 Pa.C.S.A. § 1928.

      . Section 202(e) states that “... replacement services loss may include provisions to provide: ... (2) with respect to work loss or replacement services only, a waiting period not to exceed one week.” 40 P.S. § 1009.202(e). Here, as in Section 202(c), there is no specific indication of when the waiting period might begin to run.

      . This legislative silence is to be contrasted with the explicit language contained in an analogous provision of the New York No-Fault Act, 1973:
      “Basic economic loss means ... all other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury.” McKinney’s Insurance Law § 671(l)(c).

      . 31 Pa.Code 66.102 contains a model Basic Personal Injury Protection Endorsement. In this policy, “replacement services loss” is defined as “expenses reasonably incurred during the eligible person’s lifetime in obtaining ordinary and necessary services replacing those he would have performed without pay or profit, for the benefit of himself and his family.” (emphasis added). We do not take this language to be dispositive for the interpretation of the statutory phrase at issue here, but note that nothing in this model policy is inconsistent with our interpretation.

      . Webster’s Third International Dictionary gives as one definition of one year: “the time required for the apparent sun to return to an arbitrary fixed or moving reference point in the sky...” 2648.


author: MONTEMURO, Judge: CAVANAUGH, Judge,

text:
    445 A.2d 1228
    Benjamin F. HARVEY and Kathleen Harvey, his wife, Appellants, v. Elmer F. HANSEN, Jr., Barbara Aikens, Charles Aikens, Bucks County and New Britain Township.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed May 14, 1982.

      Alan D. Williams, Doylestown, for appellants.
    Gordon Erdenberger, Doylestown, for Hansen and Bucks County, appellees.
    Glenn David Hains, Morrisville, for Aikens, appellees.
    Henry F. Huhn, Cornwells Heights, for New Britain Tp., appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

On February 1, 1975, Kathleen Harvey, appellant, was driving her automobile in a southerly direction on Upper State Road. Defendant/appellee, Barbara Aikens, was driving her automobile in an easterly direction on County Line Road. The two vehicles collided at the intersection of Upper State Road and County Line Road, and as a consequence, the appellant sustained serious personal injuries. The defendant/appellee, Elmer F. Hansen, Jr., was the owner of a tract of land located at the northwest corner of this intersection. In count 2 of her complaint, appellant alleged that defendant-appellee Hansen (hereinafter Hansen) was negligent because he maintained his property “in such a manner as to allow to exist thereon trees, bushes, shrubs, grasses and other plant growth” which obstructed the lateral view of appellant as she attempted to cross County Line Road. Additionally, appellant alleges that Hansen was negligent in failing to remove the obstructions to eastbound traffic on County Line Road and in failing to warn motorists of the hazardous condition created by the existence of the obstructions.

After the pleadings were closed, Hansen filed a motion for summary judgment pursuant to Pa.R.C.P. 1035 on the theory that there was no genuine issue as to any material fact with regard to appellant’s claim against him and therefore Hansen was entitled to judgment as a matter of law. On April 22, 1981 the lower court made a finding that no issue of material fact existed and that Hansen would prevail as a matter of law. The court granted Hansen’s motion for summary judgment and this appeal followed. We agree with appellant that this was error.

In Yaindl v. Ingersoll-Rand Co. Etc., 281 Pa.Super. 560, 565, 422 A.2d 611, 613 (1981) our court again set forth the well-established principles to be applied in deciding whether to grant a motion for summary judgment.

Summary judgment is made available by Pa.R.C.P. 1035, 12 P.S. Appendix when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of genuine issue of fact, the court must take the view of the evidence most favorable to the non moving party, and any doubts must be resolved against the entry of the judgment. (Citations omitted). Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975). See also Amabile v. Auto Kleen Car Wash, [249] Pa.Super. [240], 376 A.2d 247 (Filed June 29, 1977); Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The moving party bears the burden of demonstrating clearly that there is no genuine issue of material fact. Prince v. Pavoni, 225 Pa.Super. 286, 302 A.2d 452 (1973); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968).

The lower court, relying primarily on Haldeman v. Mercer, 30 D. & C.2d 435 (1963), granted Hansen’s motion for summary judgment on the theory that an owner of land owes no duty to persons not on his property, and specifically the appellant herein, to prevent visual obstruction caused by natural conditions on his land. Slip op. at 2. The court also distinguished Section 363(2), Restatement (Second) of Torts and the cases which follow it.

Haldeman, supra, decided the issue of a landowner’s liability to motorists on an adjoining thoroughfare on the dichotomy between a “natural condition” of the land as opposed to an “artificial condition”. Further, the court interpreted Sections 363 and 364, Restatement (Second) of Torts to preclude liability where the overgrowth and natural foliage, which obscured the vision of motorists to both the stop sign and the intersection, was a “natural condition” of the land as opposed to a structure or other artificial structure placed upon the land by the landowner or a third person. (Haideman, at 437)

In the instant appeal, the lower court found that “there is no indication that the condition in the instant case was not natural.” Slip op. at 4. We agree with appellant that in making this finding, for which we find no support in the pleadings, deposition or answers to interrogatories, the lower court violated the well-established principles governing motions for summary judgment. Yaindl v. IngersollRand Co. Etc.,. supra. Whether or not the condition on Hansen’s property was natural or artificial was an issue of existing fact which should properly be decided at trial by a jury. In deciding this issue in favor of the moving party, the court did further violence to the rules governing summary judgment by failing to examine the record in the light most favorable to the non-moving party, the appellant herein. However, we shall not remand on that basis alone.

The “natural condition” standard for imposing or not imposing liability creates the anomalous situation of imposing liability on a landowner who improves and maintains his property while precluding liability of a neighboring landowner who allows the “natural condition” of his property to run wild. Under this analysis, landowner A may plant hedges or bushes around the perimeter of his property and if they are allowed to become too thick or too tall so as to obstruct a motorist’s vision of an intersection, he will be held liable. Landowner B, on the other hand, may neglect his property, allowing it to be overrun and overgrown with weeds, plants, grasses and other natural foliage, to an equal or greater detriment to passing motorists, but with no liability to himself. The distinction appears to be arbitrary at best.

While it is true, as the lower court points out, that there are a paucity of cases on point in Pennsylvania, there are at least a few which speak to the issue. The rationale in these cases rests not with an inquiry into the duty of a landowner to persons not on his property, or whether the condition on the land was “natural” or “artificial.” Instead, the inquiry focuses on the question of causation.

The first of these cases is Cotter v. Bell, 417 Pa. 560, 208 A.2d 216 (1965). There the plaintiff, a minor, was injured while riding his bicycle on a public street. The original defendant who was the operator of the motor vehicle which struck the minor plaintiff, joined as an additional defendant the owner of the property at the intersection where the accident occurred, alleging that the additional defendant was negligent in allowing a hedge at the perimeter of his property to grow in such a way as to obstruct the vision of motorists and more particularly the vision of the original defendant. The court in Cotter, supra, determined that the hedge was merely a “passive background or circumstance” of the accident and affirmed the lower court’s entering of judgment on the pleadings in favor of the additional defendant. Justice Eagan, writing for the majority, wrote further that “some may question the legal correctness of entering judgment on the pleadings in the situation presented, and may insist that the issue could more properly be determined after the evidence was completed at trial.” Cotter, supra, 417 Pa. 560, 563, 208 A.2d 216, 218 (1965). As will be seen, this statement would prove to be prophetic.

In Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970), the court once again had to concern itself with the passive actions of a third party in an intersection collision case. Again the writer for the majority was Justice Eagan and with remarkable coincidence the appeal was taken from an Order entered by the same trial judge as in Cotter, supra, Hon. J. William Differ, Jr. of the Court of Common Pleas of Montgomery County. In Clevenstein, supra, the facts were quite different. The third party was not a landowner but the owner of a motor vehicle cited for violation of The Vehicle Code, Act of April 29, 1959, P.S. 58, § 1021(4), 75 P.S. § 1021(4) (Supp.1970) and as a consequence of that violation it was obstructing the vision of passing motorists. The plaintiff, Clevenstein, was operating a motor bike and he collided at the intersection with an automobile owned by the original defendant Rizzuto. Clevenstein sued Rizzuto for damages, alleging in his complaint that Rizzuto drove his automobile into an intersection which was controlled by a stop sign without maintaining a reasonable lookout for the' presence of other vehicles coming into the intersection from the through street, and that the negligence of Rizzuto caused the accident. Rizzuto then filed a complaint joining Williams as an additional defendant. Rizzuto, the original defendant, alleged that the additional defendant carelessly and negligently parked his vehicle in such a way as to obstruct the original defendant’s view of the intersection; that the additional defendant’s vehicle was parked in violation of the Vehicle Code; and that the parking of the vehicle in that location was the sole cause of the collision between Clevenstein and Rizzuto. The additional defendant filed preliminary objections in the nature of a demurrer alleging that the complaint of the original defendant failed to state a cause of action. The preliminary objections were sustained by the lower court. Our Supreme Court reversed the lower court’s order sustaining the additional defendant’s preliminary objections and in so doing it reversed its holding in Cotter, supra. Justice Eagan, combining logic with admirable jurisprudential candor, wrote as follows:

One further matter needs discussion. The lower court’s action herein was based on our decision in Cotter v. Bell, 417 Pa. 560, 565, 208 A.2d 2126 (1965), and this is understandable . .. We ruled that the property owner’s conduct, even if negligent, was merely a passive circumstance of the accident and hence, not the proximate cause thereof. Our research indicates that Cotter was the first instance wherein we decided the question of superceding cause in the context presented at a preliminary stage in the proceedings. In other relevant cases, the question was resolved only after the facts were developed at trial. (Citations omitted). Cotter might possibly be distinguished from the instant case on the ground that therein a hedge was involved, i.e., a static or rather permanent condition, as opposed to a moveable object, or that the object obstructing the visibility was located off the highway. We prefer to be more intellectually honest than to rely on such tenuous distinctions. Better, should we say, “Wisdom should never be rejected merely because it comes late.” (Emphasis supplied).

In Estate of George M. Flickinger v. Ronald Ritsky and Marona Construction Co., 452 Pa. 69, 305 A.2d 40 (1973), our Supreme Court again addressed the issues raised in Cotter and Clevenstein. In this case appellants’ decedent was driving his motorcycle northbound on a four lane highway. At the same time, the defendant, Ritsky, pulled onto the highway from a “Dairy Queen” parking lot on the easterly side of the highway. Ritsky’s car and Flickinger’s motorcycle collided, and Flickinger was killed. A week prior to the collision the defendant Marona Construction Company (hereinafter Marona) had, in the course of laying a sanitary sewer pipe, piled dirt from the sewer excavation onto the berm of the highway. The dirt pile was located 138 feet south of the point at which Ritsky exited from the parking lot and in the direction from which Flickinger approached the summit of collision. Flickinger’s father, as administrator of his son’s estate, filed survival and wrongful death actions against Ritsky on the theory that he was negligent in entering the highway without an adequate view of oncoming traffic and against Marona on the theory that the construction company was negligent in permitting a pile of dirt to obstruct the vision of drivers such as Ritsky. The actions were settled out of court with Ritsky, but they proceeded to trial against Marona. The jury returned a verdict for plaintiffs and the lower court granted Marona’s motion for judgment n.o.v. and our court affirmed on appeal. The Supreme Court granted allocatur to consider the question of proximate causation presented in light of its decision in Clevenstein and reversed the order of our court, vacated the judgment n.o.v., and remanded the case for entry of judgment on the verdict.

Mr. Justice Pomeroy, writing for a unanimous court, observed that “both Cotter and Clevenstein were cases in, which the question of superceding causation was raised at a preliminary stage of the case. In Cotter we affirmed the grant of judgment on the pleadings in favor of the defendant who was ‘passively’ negligent whereas in Clevenstein we reversed the grant of judgment on the pleadings in favor of the defendant.” In Flickinger, the case went to trial and the jury found against the party, Marona, whose antecedant act constituted the “passive” negligence. Relying on Cotter, the lower court granted judgment n.o.v.

Justice Pomeroy found it necessary to “explore further the validity of the ‘passive condition’ argument vis a vis the question of proximate causation in Pennsylvania” for the reason that there may have been uncertainty whether the courts dissaproved of Cotter “as based only on the fact that it had decided a difficult causation question as a matter of law before the evidence was in, or whether we also disapproved of the substantive holding which was a repetition of that in Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957): ‘An act of negligence which merely creates a passive background or circumstance of an accident is not the proximate cause thereof, where the accident is, in fact, caused by an intervening act of negligence which is a superceding cause.’ ” (citing Cotter, supra).

The Flickinger court stated further that:

The controlling rule of law in Pennsylvania on the extent of liability of negligent actor, i.e., the law of proximate causation, where that question is presented in the light of an intervening act of negligence, is contained in section 447 of the Restatement (Second) of Torts (1965):
§ 447. Negligence of Intervening Acts.
The fact that an intervening act of a third person [here Ritsky] is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s [here Marona’s] negligent conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent. (Emphasis supplied).
It is easily seen that this statement of the law, like the rules controlling the question of what conduct is negligent presents fact questions of its own force. An intervening negligent act will not be a superseding cause relieving the original negligent actor from liability if that actor at the time of his negligent act should have realized that another person’s negligence might cause harm; or, if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary; or, if the intervening act is not extraordinarily negligent. What the original actor should have realized and what a reasonable man would say was highly extraordinary are, of course, fact questions which must in the majority of cases be left to the jury. The Restatement (Second) of Torts § 453 (1965), (Comment b), makes quite clear this division of responsibility as between court and jury:
“If, however, the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.”

The Flickinger rationale sheds considerable light on the case presented to us in this appeal. The message of Flickinger, which we hold is dispositive of this appeal, is that the issue of factual causation should be decided at trial. Flickinger, supra, 452 Pa. at 76, 305 A.2d at 44, enunciates the point succinctly:

It must be acknowledged as appellee argues, that at times in the past this Court has been of the view that persons who have proceeded without due regard for obvious physical obstructions to vision—fences, hedges, parked trucks and the like—have been extraordinarily negligent as a matter of law and that therefore liability should terminate short of the negligent constructor of the hedge or the fence, or the driver of the truck. At the same time it is necessary to recognize that normally such situations present essentially factual questions under the principles of section 447 of the Restatement (Second) of Torts, and that where reasonable minds could differ, resolution of such questions is properly left to the jury.
The wisdom which may be said to have come late to this Court with regard to the problem presented by this type of case is the recognition that “the [passive condition] is now almost entirely discredited”. W. PROSSER, LAW OF TORTS § 49, at 286 (1964): this Court will no longer attempt to solve questions of proximate causation by resort to the label “passive.” As Professor Prosser puts it, “it is not the distinction between ‘cause’ and ‘condition’ which is important, but the nature of the risk and the character of the intervening cause.” Id. at 286 (emphasis added). These two factors, of course, are the central concern of section 447 of the Restatement.

The Haldeman case, which gave us the “natural v. artificial condition” analysis for determining a landowner’s liability for obstructing the vision of passing motorists, was a 1968 Chester County case which was never appealed, which has never been followed, and which we now specifically reject.

As we have seen, the Flickinger court laid to rest the “passive condition” distinction and decided the case on the legal principles set forth in the Restatement (Second) of Torts, Section 447. Applying those same principles to this case, whether appellant’s conduct here was such a superceding cause as to relieve Hansen of liability, or whether a reasonable man would regard appellant’s conduct as highly extraordinary or whether appellant’s conduct was extraordinarily negligent, are all fact questions which should be submitted to a jury.

Although not applicable here because the effective date of the statute was July 1, 1977, the legislature recognized the hazardous nature of visual obstructions to passing motorists when it enacted the following amendment to the Vehicle Code:

“It is the duty of the owner of real property to remove from the property any tree, plant, shrub or other similar obstruction, or part thereof, which by obstructing the view of any driver constitutes a traffic hazard.”

Thus, property owners are now on notice that they should remove or cut back foliage which obstructs the vision of passing motorists at an intersection.

Finally, to decide as a matter of law that Hansen bears no liability is especially disconcerting here because it was the plaintiff’s vision rather than defendant’s which was obstructed. By removing Hansen as a defendant, it may well be impossible for a jury to accurately ascertain and assess liability. The defendant-appellees, Aikens, apparently share this belief and have fully incorporated by reference and have adopted as their brief the brief of appellants.

For all of the foregoing reasons, the order of the court below is reversed and the record is remanded for further proceedings consistent with this opinion.

This court does not retain jurisdiction.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

I agree with the majority that the court below erred in entering summary judgment in favor of the landowner, Elmer F. Hansen, Jr. However, I would reverse only on the basis that there is a genuine issue of fact concerning the conditions existing on Mr. Hansen’s property at the time of the accident. In my opinion, the remaining matters with which the majority deals are not germane to the issue which we are called upon to decide.

      . Appellant filed her complaint in trespass in both Bucks County and Montgomery County since the accident occurred on the borderline of those two counties. The two actions were subsequently consolidated into one action in Bucks County.

      . Although not relevant to this appeal, appellant’s original complaint also named Aikens, New Britain Township, Warrington Township, Montgomery Township, Bucks County and Montgomery County as defendants. On September 14, 1977, the lower court sustained the preliminary objections of Warrington Township, Montgomery Township, Bucks County and Montgomery County and dismissed the complaint as to each of them. At the same time the court found that defendant Hansen’s property was situated in New Britain Township. Aikens, Hansen and New Britain Township remained as defendants.

      . Pa.R.C.P. 1035 provides in pertinent part as follows:
      (a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.

      . In its opinion, the lower court stated, “Additionally the Harveys alleged that Hansen negligently failed to remove the natural growth and failed to warn motorists of the hazardous condition created by the growth all of which contributed to Mrs. Harvey’s accident.” (Emphasis supplied). Slip op. at 2. However, appellant never referred to trees, bushes, shrubs, grasses and other plant growth as natural growth; appellant’s position was that they were maintained by Hansen in such a way as to obstruct the lateral vision of motorists like the appellant and that he gave motorists no warning of these obstructions.

      . In Haldeman, supra, the plaintiff alleged that the defendant landowner was liable for allowing overgrowth and foliage from the land to cover a stop sign and obscure the vision of motorists.

      . Section 363, Restatement (Second) of Torts, provides as follows:
      § 363. Natural Conditions
      (1) Except as stated in Subsection (2), neither a possessor land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.
      (2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.
      Comment b. to Section 363 provides:
      b. Meaning of “Natural condition of land.” “Natural condition of the land” is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artifically made receptive to them. On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective or whether they are harmful in themselves or become so only because of the subsequent operation of natural forces. The lower court correctly observed that the cases interpreting
      Section 362(2) did not impose liability on the landowner as a result of
        visual obstruction, but “for injury caused by the physical impact of dead or decayed trees or parts thereof that fall onto persons or property on a public way” Slip op. at 5. In support of this interpretation, the lower court cited W. PROSSER, THE LAW OF TORTS, Chapter 10, Section 57, p. 354 (4th Ed. 1971), wherein Professor Prosser discusses the liability of landowners, rural and urban, for dangerous trees that fall onto a public highway or city street; the thrust of the lower court’s argument being that Professor Prosser does not discuss visual obstruction caused by trees. We note, however, that the analysis by Prosser was not an attempt to interpret Section 363(2) of the Restatement (Second) of Torts. In any event, the lower court found no authority for extending the analysis of falling trees or parts of trees to visual obstruction and refused to do so.

      . The fact that in Cotter, judgment was entered on the pleadings, whereas in the case before us the lower court granted Hansen’s motion for summary judgment, does not affect our holding here. As pointed out in Goodrich-Amram 2d, Section 1035(a)3, “The motion for judgment on the pleadings is limited exclusively to the pleadings themselves and no outside material may be considered ... The motion for summary judgment is designed to supplement the motion for judgment on the pleadings to provide for an equivalent summary disposition of the case where the pleadings may be sufficient on their face, to withstand a demurrer but where, in actuality, there is no genuine issue of fact and this can be conclusively shown through depositions, answers to interrogatories, admissions or affidavits.”

      . At the time of the accident in Clevenstein, supra, this section of the Vehicle Code specifically prohibited the parking of vehicles within 25 feet of the curb lines of an intersection, or if no curb lines existed, then within 15 feet of the property lines at the intersection of the highway.

      . The language of section 447 of the Restatement has been adopted by the court in various previous decisions. See cases cited in footnote 6, in Flickinger, supra.

      . 75 Pa.C.S.A. § 6112(a).


author: SPAETH, Judge:

text:
    445 A.2d 1235
    COMMONWEALTH of Pennsylvania v. Mark E. YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1981.
    Filed May 21, 1982.

      Daryl E. Moyer, Assistant Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

The only issue on this appeal is whether the lower court abused its discretion by sentencing appellant to concurrent sentences of two to five years in prison on each of his three convictions for receiving stolen property, criminal conspiracy, and corrupting the morals of a minor, with the directive that on each count appellant should pay the costs of prosecution and a fine of $100, and “[make] restitution as determined by the Berks County Probation Office.” Because the lower court failed to state adequately its reasons for the sentences, we vacate the judgments of sentence and remand for resentencing.

On July 20, 1980, a criminal complaint was issued against appellant charging him with theft by unlawful taking, receiving stolen property, criminal conspiracy, and corrupting the morals of a minor. On November 19, 1980, a jury returned a verdict of guilty on all charges except the charge of theft by unlawful taking. No post-trial motions were filed. A presentence investigation was conducted and a report issued, recommending that appellant be sentenced to serve a term of imprisonment of 18 months to five years on each conviction. On January 27, .1981, the lower court sentenced appellant. At the end of the sentencing proceeding, the court said:

The reasons for the sentences, of course, are that it is a serious matter to receive stolen property, conspiring with another in doing so, and engaging the corruption of a minor while doing so. Likewise, the past record of the defendant—three different items—are serious matters— or at least two of them are quite serious.
N.T. at 6.

Earlier in the proceeding, the court referred to appellant’s prior record as “attempted robbery in April of 1977, a burglary in July of 1977, possession of a small amount of marihuana and intoxicants in November of 1977, and several indeterminate sentences to Camp Hill.” N.T. 3^4.

Appellant petitioned for reconsideration of the sentences, but on March 2, 1981, without argument or an opinion, his petition was denied.

It is settled that in imposing sentence,

[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.
Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 310, 401 A.2d 1223, 1225 (1979) (collecting cases).

This means that the sentencing judge has a dual responsibility. The first responsibility is a fact-finding responsibility. The judge must be sure that he has “sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa.Superior Ct. 373, 418 A.2d 1336, 1340 (1979), citing Commonwealth v. Wicks, supra. The second responsibility is an application-and-explanation responsibility. The judge must apply to the information he has gathered the legislative guidelines specified in the Sentencing Code, Act of Dec. 30,1974, P.L. 1052, No. 345, § 1 as amended by Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, and by Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a), 42 Pa.C.S. § 9701 et seq. Commonwealth v. Doyle, supra; Commonwealth v. Kostka, 276 Pa.Superior Ct. 494, 509, 419 A.2d 566, 573-74 (1980) (SPAETH, J., concurring). See also, Commonwealth v. Kraft, 294 Pa.Superior Ct. 599, 440 A.2d 627 (1982).

Here, we cannot tell whether the sentencing judge fulfilled his fact-finding responsibility. We have no information regarding the circumstances of the offense, except what can be surmised from the allegations in the complaint, and no information regarding the character of the defendant, except his prior record. The report of the pre-sentence investigation is not included in the record. In addition, the sentencing judge failed to fulfill his application-and-explanation responsibility. The judge’s statement of reasons for the sentence do not make even tangential reference to the legislative guidelines specified in the Sentencing Code.

The judgments of sentence are vacated and the case remanded for re-sentencing.


author: McEWEN, Judge:

text:
    445 A.2d 1237
    William DONER and Maryann Doner, h/w, Appellants, v. JOWITT AND RODGERS CO.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed May 21, 1982.

      Anne E. Fialkowski, Philadelphia, for appellants.
    Robert J. Harrington, Philadelphia, for appellee.
    Before HESTER, McEWEN and SHERTZ, JJ.
   McEWEN, Judge:

We here consider an appeal from an order granting the motion of appellee for judgment on the pleadings after the appellee pleaded the defense of the statute of limitations to a complaint in trespass for personal injuries allegedly suffered nearly ten years prior to the commencement of the instant action.

Appellants, William and Maryann Doner, are husband and wife. The history of the instant suit is inextricably intertwined with a prior suit arising out of the same occurrence and concluded by the entry of a judgment of non pros and, therefore, we must review the procedural history of both the earlier suit and the present litigation in order to be able to consider the issues of this appeal.

William Doner allegedly fell and suffered injuries on January 29, 1969 while on the premises of appellee, Jowitt and Rodgers Co. (hereafter Jowitt and Rodgers). William Doner (but not his wife, Maryann Doner) commenced the original suit, an action in trespass, by filing a summons in trespass on January 20, 1971 and a complaint on February 16, 1971. Jowitt and Rodgers, some three years later, on February 1, 1974, filed interrogatories addressed to William Doner which were neither objected to nor answered. On April 7,1976, new counsel for Jowitt and Rodgers proceeded under the then valid Philadelphia Civil Rule 145 which, in essence, permitted the entry of a judgment of non pros by the Prothonotary upon completion of the procedure established by Rule 145 if a plaintiff persisted in the failure to file answers to the interrogatories.

On April 22,1976, the Prothonotary, pursuant to Rule 145, directed William Doner by interlocutory order to file answers to the outstanding interrogatories within thirty days or suffer a judgment of non pros. Counsel for William Doner twice received thirty day extensions without filing answers. Counsel for Jowitt and Rodgers completed the final procedures under Rule 145 on August 12,1976 and, as a result, the Prothonotary on that same date, entered a judgment of non pros.

On August 30, 1976, following the refusal of counsel for Jowitt and Rodgers to accept tender by Doner of the answers to the interrogatories, a motion to strike the judgment of non pros was filed by counsel for Doner and, on December 8, 1976, the motion was denied by the Common Pleas Court. William Doner appealed to this Court on January 4, 1977 and presented as the single issue for appeal a contention that the denial by the Common Pleas Court of the motion of William Doner to strike the judgment of non pros constituted an abuse of discretion. This Court affirmed the order of the Common Pleas Court by per curiam order dated November 30, 1977. Doner v. Jowitt and Rodgers Co., 251 Pa.Super. 614, 381 A.2d 905 (1977). The Pennsylvania Supreme Court granted a petition by William Doner for allowance of appeal in which the sole argument expressed was that the refusal to strike the judgment of non pros was error. Chief Justice Michael J. Eagen observed in his Opinion of March 26,1979 that, while the petition for allowance of appeal filed in the Supreme Court advanced only the issue raised in the appeal to the Superior Court, William Doner, in his brief to the Supreme Court and during oral argument, raised as new issues the validity of and the constitutionality of Rule 145. The Court applied the waiver doctrine, stating that “since neither of these issues were raised in the trial court, in the Superior Court, or in the Petition for Allowance of Appeal they have not been preserved for review in this Court,” and dismissed the appeal as improvidently granted. Doner v. Jowitt and Rodgers Co., 484 Pa. 496, 500, 399 A.2d 402, 404 (1979). Doner then filed a petition for reargument in the Supreme Court which was denied on April 10, 1979.

On April 2, 1979, less than three weeks after the filing of the Supreme Court Opinion dismissing the appeal, appellant William Doner commenced the instant suit in the Common Pleas Court alleging exactly the same cause of action as he had asserted iii the initial suit. This time, however, Maryann Doner, his wife, joined in the complaint as a party plaintiff to express a claim for loss of consortium. Jowitt and Rodgers raised in its answer to the complaint the affirmative defense of the statute of limitations and, thereafter, filed a motion for judgment on the pleadings. The learned Philadelphia County Common Pleas Court Judge William A. Dwyer granted the motion and entered judgment in favor of appellee Jowitt and Rodgers on August 6, 1979. The Doners then brought this appeal.

The appellants express in the single issue of their appeal the contention that “a plaintiff whose case is dismissed under an invalid local rule should not be denied his constitutional rights and the defendant should be estopped from raising the bar of the statute of limitations in a subsequent suit filed arising out of the same occurrence.” We do not agree.

The statute of limitations applicable to a claim for personal injuries requires that an action to recover damages for such injuries must be commenced within two years of the time the cause of action accrues. The instant action which mirrors the suit instituted in 1971 (the single difference is that Maryann Doner is also a party plaintiff) was instituted more than twelve years after the alleged occurrence. It is firmly established in Pennsylvania that a defendant will be estopped from invoking the statute of limitations only in clear cases of fraud, deception or concealment. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Bonfitto v. Bonfitto, 391 Pa. 187, 137 A.2d 277 (1958); Henry v. Control Products Co., 284 Pa.Super. 417, 426 A.2d 116 (1981); Courts v. Campbell, 245 Pa.Super. 326, 369 A.2d 425 (1976). Appellants here do not and could not allege fraud, deception or concealment on the part of the appellee. Rather, inspired by the decision of this Court in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979), appellants propose to have this Court create an exception to the statute of limitations. However admirable the persistent effort of counsel to serve the client, we must reject that proposal.

The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations. Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770 (1976); Bucci v. Detroit Fire and Marine Insurance Co., 109 Pa.Super. 167, 167 A. 425 (1933). Appellants, of course, have not done so. At the time the judgment of non pros was entered in the prior case, the applicable statute of limitations had long since expired. Appellants brought the second action, some eight years after the first, in an attempt to collaterally attack the judgment of non pros entered in the prior case and affirmed on appeal. We perceive this action as an effort to gain the favorable treatment accorded to appeals contesting the validity of judgments of non pros entered in accordance with Rule 145 which were pending when Gonzales was decided. Gonzales and its progeny allow such judgments of non pros entered by the Philadelphia Prothonotary under the authority of Rule 145 to be stricken. See Johnson v. Moore Motors, Inc., 285 Pa.Super. 237, 427 A.2d 200 (1981); Pavone v. Anthony and City of Philadelphia, 273 Pa.Super. 376, 417 A.2d 697 (1980); Gonzales v. Procaccio Bros. Trucking Co., supra. This Court, however, has refused to apply Gonzales retroactively to judgments which became final before Gonzales was decided. See, e.g. Tice v. Nationwide Life Insurance Co., 284 Pa.Super. 220, 425 A.2d 782 (1981) (concurring opinion by Spaeth, J.); Washington v. Liberi, 273 Pa.Super. 48, 416 A.2d 1082 (1979). In Tice, supra, the majority held that a judgment entered pursuant to Rule 145 would be stricken if an appeal from the entry of a default judgment was pending at the time Gonzales was decided. The judgment of non pros in the prior case became final when, on March 16, 1979, four months before Gonzales was decided, the Supreme Court quashed William Doner’s first appeal as improvidently granted. Therefore, the judgment of non pros must stand and the order of the Common Pleas Court entering judgment on the pleadings in favor of appellee is hereby affirmed.

Order affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.

      . Philadelphia Civil Rule 145 provided:
      If the adverse party fails to file of record answers to interrogatories within the time period required by Pa.R.C.P. 4005 or timely objections under Pa.R.C.P. 4005(b) and, in addition, does not so file within any extended period granted to him under Pa.R.C.P. 248, the Prothonotary shall, on praecipe and certification of service and upon ten (10) days notice by the party filing the interrogatories, enter an interlocutory order requiring the adverse party to file answers within thirty (30) days of the date of the order, and providing for sanctions as hereinafter set forth.
      This order shall become final at the expiration of the interlocutory period, upon filing of a supplemental praecipe and certification of service, unless prior to the expiration of the interlocutory period, the party required to answer the interrogatories files a motion for an extension of this time limit. Such motion shall be disposed of by an appropriate order of the Civil Motion Court.
      The interlocutory order of the Prothonotary setting forth sanctions as provided herein shall be as follows:
      (A) As to defendant, defendants, or additional defendants, an order entering judgment as to liability in favor of the party filing the interrogatories against the nonanswering party who shall be precluded from the entering of a defense and the introduction of evidence at the time of trial relating to the subject matter of the unanswered interrogatories;
      (B) As to a plaintiff or plaintiffs, an order entering a Judgment of Non Pros in favor of the party filing the interrogatories.
      Whenever a praecipe is required herein, it shall be filed by the party filing the interrogatories.

      . Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S.A. Section 5524(2). The present statute of limitations governing personal injury actions became effective on June 27, 1978 and repealed 12 P.S. Section 34, from which the present statute was derived.

      . In Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979), this court declared Philadelphia Civil Rule 145 invalid as in conflict with Pa.R.C.P. 4019 and ordered the judgment of non pros entered pursuant to the rule stricken.