author: ROWLEY, President Judge:

text:
    657 A.2d 989
    COMMONWEALTH of Pennsylvania, v. Frederick James PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 24, 1995.
    Filed April 25, 1995.

      William H. Burwell, Franklin, for appellant.
    Mark A. Serge, Asst. Dist. Atty., Franklin, for Com., appellee.
    Before ROWLEY, President Judge, and McEWEN and POPOVICH, JJ.
   ROWLEY, President Judge:

Frederick James Perry appeals from the judgment of sentence entered after he was convicted of one charge of simple assault as a misdemeanor of the third degree, that is, an assault committed in a fight entered into by mutual consent. Appellant raises two substantive issues on appeal: whether the trial court erred in denying his challenges for cause to two prospective jurors and whether the prosecutor committed misconduct during his closing argument. Appellant also raises two issues concerning the nature of the record before us. Because we find merit to appellant’s first issue, we vacate the judgment of sentence and remand for a new trial.

In its opinion, the trial court described the circumstances underlying this case:

On August 11, 1991, a party was held at Donna Perry’s home in Cherrytree Township, Venango County, which is near Titusville, Pennsylvania. Ms. Perry is the defendant’s mother. The victim, Jamie Andrusky, although not invited, attended the party and became quarrelsome. After Andrusky got involved in several altercations, Ms. Perry asked him to leave. Later in the evening while Mr. Andrusky was involved in yet another altercation, Mr. Andrusky knocked Ms. Perry out with one punch. The testimony on whether Andrusky hit Ms. Perry inadvertently or intentionally is unclear. What is clear from the testimony, however, is that Ms. Perry suffered only one blow, and was knocked down. After that, Andrusky was viciously attacked by several people at the party, including the defendant. The evidence was very equivocal on who inflicted what injuries on Andrusky, but the testimony was compelling that long after Andrusky was done fighting and appeared immobile that defendants continued to beat on him. Both defendants asserted self defense and defense of others. We did charge on the law of self defense and defense of others, however, the evidence clearly supported a finding that Andrusky was beyond defending himself at the time he was being beaten by defendants and others. The jury’s verdict, based upon our considered assessment of the credible evidence adduced during the trial, supports the theory that the defendants (Perry and McGowan) after being provoked by Andrusky’s aggressive conduct, beat on Andrusky but there were others also beating on him before, during and even possibly after, the McGowan, Perry beating and, therefore, the Commonwealth could not sustain its burden of proving a causal link between Andrusky’s very serious injuries and Defendant’s criminal conduct. Several witnesses testified that they saw Mr. Andrusky being kicked in the head and trunk area after he was rendered unconscious. Andrusky was first taken to Titusville Hospital and then transferred to Saint Vincent Health Center where he was diagnosed as suffering an intraventricular hemorrhage. Andrusky was in intensive care eleven (11) days and as of the date of trial, had no memory of the events in question.

Trial Court Opinion (White, P.J.), 7/6/93, at 2-3. On the basis of the evidence presented at trial, appellant was convicted of simple assault as a third-degree misdemeanor. After he was sentenced to a term of imprisonment of one to twelve months, he filed this timely appeal.

In his first issue, appellant contends that the trial court erred in denying his challenges for cause to two potential jurors.

A challenge of a prospective juror should be sustained in two types of situations. One is where the juror indicates by his answers that he will not be an impartial juror. Another is when the juror has such a close relationship, familial, financial or situational, with the parties, counsel, victims or witnesses that the court will presume a likelihood of prejudice, irrespective of the answers given on voir dire.

Commonwealth v. Maxwell, 355 Pa.Super. 575, 585, 513 A.2d 1382, 1387 (1986) (citation omitted) (emphasis added). The decision whether to grant a challenge for cause rests within the trial court’s discretion and will not be reversed absent palpable error. Commonwealth v. Lane, 521 Pa. 390, 396, 555 A.2d 1246, 1249-50 (1989). However, “[t]he latter principle— that the decision rest[s] within the sound discretion of the trial court — was never intended to be a euphemism for a ruling that is insulated from appellate review. The record must justify the action taken by the trial court.” Id. at 396, 555 A.2d at 1250. After reviewing the record, we conclude that the trial court erred in denying appellant’s challenge for cause to prospective juror Harry Stewart.

The record reveals the following. During voir dire, the trial court asked if any of the prospective jurors were acquainted with or related to Pennsylvania State Trooper Charles J. Daley, characterized by the trial court as the “arresting and accusing police officer.” Mr. Stewart testified that he knew Trooper Daley for over twenty years, that Trooper Daley was his best friend, and that he socialized with Trooper Daley approximately once a week. Moreover, Mr. Stewart testified that Trooper Daley is an honorable man and that he had no doubts whatsoever about Trooper Daley’s veracity. Mr. Stewart also testified that depending on the testimony at trial, his personal experiences would possibly affect his ability to evaluate Trooper Daley’s testimony. Notwithstanding Mr. Stewart’s statements, the trial court refused appellant’s challenge for cause because Mr. Stewart stated that he could be impartial, and because he thought he could try the case based upon what transpired in the courtroom and assess Trooper Daley’s credibility on the same standard as any other witness.

Although a trial court’s decision to deny a challenge for cause is given great deference, where, as here, a potential juror characterizes the accusing police officer as his best friend and an honorable man, and where that potential juror opines that he has no doubts whatsoever about the officer’s veracity, “the court [should] presume a likelihood of prejudice.” See Maxwell, supra, 355 Pa.Super. 575, 513 A.2d 1382. This is especially true considering that Trooper Daley was seated beside the prosecutor during appellant’s trial. See Appellant’s Brief at 6. The trial court, by focusing solely on Mr. Stewart’s statement that he could be impartial, disregarded the presumption of a likelihood of prejudice which arose under these circumstances. Furthermore, Mr. Stewart’s statements concerning whether his relationship with Trooper Daley would have an influence on him were not completely unequivocal. For the above reasons, we conclude that the trial court erred in refusing appellant’s challenge for cause to Mr. Stewart.

Because of that conclusion, we need not decide whether the trial court erred in denying appellant’s challenge for cause to Caroline McCreary. We note, however, that while Ms. McCreary told the court, after much questioning, that she could decide the case, she also stated that she blacks out, that is, loses track of things, that she might forget testimony, and that she could remember everything if she really concentrated, but that it would be difficult for her to do so at times. It also appears that the prosecutor was on the verge of challenging Ms. McCreary himself on two occasions when he was interrupted, first by counsel for appellant’s co-defendant and then by the trial court.

Finally, where a trial court’s rulings on a defendant’s challenges for cause have the effect of denying the defendant the use of his peremptory challenges, reversible error is present. Commonwealth v. Ingber, 516 Pa. 2, 11, 531 A.2d 1101, 1105 (1987). In the present case, it is difficult to determine from the record whether appellant used all his peremptory challenges, although neither the trial court nor the Commonwealth refute his assertion that he did in fact do so. With regard to the number of challenges afforded a criminal defendant, Pa.R.Crim.P. 1126 provides:

(b) Trials Involving Joint Defendants
(1) In trials involving joint defendants, the defendants shall divide equally among them that number of peremptory challenges that the defendant charged with the highest grade of offense would have received if tried separately; provided, however, that each defendant shall be entitled to at least two (2) peremptory challenges. Where such division of peremptory challenges among joint defendants results in a fraction of a peremptory challenge, each defendant shall be entitled to the next highest number of such challenges.
(2) In trials involving joint defendants, it shall be within the discretion of the trial judge to increase the number of peremptory challenges to which each defendant is entitled up to the number of peremptory challenges that each defendant would have received if tried alone.
(3) In trials involving joint defendants, the Commonwealth shall be entitled to peremptory challenges equal in number to the total number of peremptory challenges given to all of the defendants.

Pa.R.Crim.P. 1126(b). Under subsection (a)(2) of Rule 1126, a sole defendant in a non-capital felony case is entitled to seven peremptory challenges. Accordingly, in the present case, appellant and his co-defendant were each entitled to four peremptory challenges, unless the trial court decided to increase that number to seven. During voir dire, the trial court erroneously informed the jury that each attorney in a felony case is entitled to eight peremptory challenges. However, the list of jurors reveals that each defendant used five peremptory challenges while the Commonwealth used ten. Therefore, it appears that appellant, for reasons not disclosed by the record, was given five peremptory challenges, all of which he used.

For the above reasons, we conclude that the trial court erred in denying appellant his challenge for cause to Mr. Stewart. As a result, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded for a new trial. Jurisdiction relinquished.

      . We note that Trooper Daley also testified at appellant’s trial. The substance of his testimony, however, is not disclosed in either the record or the briefs.

      . We also need not discuss the other issues raised by appellant in this appeal.

      . We note that appellant specifically contends that he would have used a peremptory challenge to strike Ms. McCreary after the trial court refused his challenge for cause.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    657 A.2d 992
    AIMEE’S TOUCH, INC. and Lynne Weiss, Jack Weiss and Shirley Weiss, H/W, Appellants, v. Mitchell A. KRAMER, Esquire and Mitchell A. Kramer & Associates, Appellees.
    Superior Court of Pennsylvania.
    Argued March 7, 1995.
    Filed April 26, 1995.

      Robert H. Nemeroff, Elkins Park, for appellants.
    Laura Heller, Jenkintown, for appellee.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge:

This appeal is presented before us following the denial of Appellants’ Petition To Open and/or Strike A Judgment Of Non Pros which was entered against them.

Action was initially taken in February of 1989 when Appellants served a Praecipe to Issue Summons on Appellees. The trial court recounts that no action was then taken until June of 1992 when Appellant’s counsel was replaced by new counsel who entered an appearance. Counsel for Appellee thereafter entered an appearance in December of 1993, and because a complaint had not yet been filed, Appellees filed a Rule to File a Complaint. In January of 1994 Appellees filed a Motion for Judgment of Non Pros and withdrew their Rule to File a Complaint. The court granted Appellees’ motion and subsequently denied a petition to open and/or strike the judgment of non pros. This appeal followed.

Appellants do not suggest on appeal that the trial court employed the wrong test when ruling on Appellees’ motion. Rather, they argue that they proceeded diligently in an effort to bring the case to trial but were thwarted by Appellees’ “duplicity.” Appellants maintain that after the entry of their new counsel in 1992 they took action including the forwarding of a completed Civil Case Information Form in July of 1992 and a Professional Malpractice Settlement Memo in December of 1992. Appellants’ assert that through misrepresentations of Appellees’ counsel Mr. Altman, they did not file a complaint in order to enable Appellees to familiarize themselves with the facts of the case and explore the possibility of settlement. They suggest that they agreed to refrain from filing the Complaint to “avoid embarrassment to the defendants over a sensitive matter such as a legal malpractice action.”

The trial court was presented with the claims made by Appellants when considering the motion for the judgment of non pros and when considering Appellants’ request to open and/or strike that judgment. It was also Appellants position before the trial court that “the major reason for the delay was their inability to locate defendants.” The court did not accept this excuse as “credible” and did not conclude that the rationale offered by the Appellants justified the delay in this case. As Appellants recognize, a determination as to whether a judgment of non pros should be entered due to the failure of a plaintiff to prosecute, is a matter which rests within the sound discretion of a trial court. Blackburn v. Sharlock, 433 Pa.Super. 581, 641 A.2d 612 (1994). Absent a manifest abuse of that discretion, the court’s ruling will not be disturbed. Id. There is nothing to suggest that the court abused its discretion in this case.

Appellants also appear to suggest that Appellees should be faulted for doing “absolutely nothing to call to the attention of Plaintiffs their alleged inactivity until January 11, 1994.” We remind Appellants, however, that it is not the defendant’s responsibility to keep watch over the case. A plaintiff has the ultimate responsibility to pursue its cause of action in a diligent manner. Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992).

Finally, Appellants maintain that a necessary finding of prejudice cannot be made in this case. They argue that prejudice cannot be presumed, nor was it specifically shown on the record. Appellants submit that the time from February of 1989 until June of 1992, when they acquired new counsel, should not be considered because they did not know that their counsel was not pursuing the case. Appellants also assert that no actual prejudice was demonstrated since there was nothing to suggest that a witness or an item of evidence can no longer be produced.

As the trial court noted, prejudice may be presumed where a plaintiff has failed to act in excess of two years. Penn Piping v. Insurance Company of North America. In this case, Appellants have offered no excuse regarding the initial delay from 1989 until June of 1992. Further, even after new counsel entered an appearance, a complaint was still never filed. The Appellees’ request for a Judgment of Non Pros did not occur until nearly another year and a half passed. When the court finally entered a Judgment of Non Pros in March of 1994, it acted well within its discretion.

Order affirmed.

      . We call counsel's attention to the fact that the appropriate method to seek relief is found in Pa.R.C.P., Rule 3051, 42 Pa.C.S.A. and is captioned a Petition for Relief from Judgment of Non Pros. Because Appellants had requested the type of relief contemplated in the rule, we will disregard, in this instance, the misnaming of their petition.


author: DEL SOLE, Judge: BROSKY, Judge,

text:
    657 A.2d 994
    LINCOLN WAREHOUSES, INC., Appellant, v. James E. CROMPTON and Gertrude H. Crompton, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1994.
    Filed April 26, 1995.

      Robert S. Adams, Pittsburgh, for appellant.
    John Rushford, Pittsburgh, for appellees.
    Before DEL SOLE, FORD, ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

The issue presented is whether the provisions of the Mobile Home Park Rights Act (MHPRA), 1976 Nov. 24 P.L. 1176 No. 261, apply to a mobile home park owner who seeks possession of a leased space following expiration of a lease term, or whether that owner may follow the procedures contained in The Landlord and Tenant Act of 1951 as amended, 68 P.S. § 250.101 et seq.

Appellant is the owner of a mobile-home park, known as Denny Estates. Appellees are owners of a mobile home who leased lot # 20 in the Appellant’s park. The term of the lease was for three years and nine months, and the lease expired on April 30, 1993. By written notice to quit, dated January 25, 1993, Appellant advised Appellees that their existing lease would “not be extended or renewed under any circumstances” and would be terminated on May 1, 1993. On May 3, 1993, Appellant brought an action to obtain possession before a District Justice. A judgment was entered in favor of Appellees, and Appellant appealed to the Allegheny County Court of Common Pleas. A Board of Arbitrators entered an award in favor of Appellees. Appellant again appealed for a de novo nonjury trial. The parties agreed to submit the case on stipulated facts, and the court decided the matter in favor of Appellees.

Appellant argues that when a park tenant’s term has expired, a mobile home park owner is entitled to recover possession of the leased premises. Appellant reasons that the requirements of the MHPRA apply only during the term of the lease and after its expiration the provisions of the Landlord and Tenant Act govern with respect to recovery of possession. We agree and reverse.

We begin our analysis by reviewing cases previously decided by this court. We note that the cases draw a distinction between ejectment and eviction. We discussed ejectment in Childs Instant Homes, Inc. v. Miller, 416 Pa.Super. 602, 611 A.2d 1208 (1992) appeal denied, 533 Pa. 605, 618 A.2d 397, in which we upheld a park owner’s right to obtain possession of the leased premises following expiration of the lease. We specifically rejected the arguments of the tenants that the MHPRA established an exclusive scheme for landlords to recover possession. Rather, we determined that the Act does not apply following the expiration of the lease.

The trial court in this case cited to Childs but held that it required a park owner at the expiration of a lease term to proffer a new lease that complies with the act. The trial court determined that only after such an offer has been rejected and the mobile home owner refuses to leave, is the park owner permitted to begin proceedings pursuant to the Landlord and Tenant Act to recover possession. The trial court erred in concluding that a new lease must be proffered. While a new lease was offered in Childs, the making of such an offer is not a requirement of the Act. The Act is silent as to what occurs with a tenant whose lease has expired.

The Mobile Home Park Rights Act, 1976, Nov. 24 P.L. 1176, No. 261 § 1; 68 P.S. § 398.1 et seq. specifies the circumstances under which a mobile home park resident may be evicted. Section 398.3(a) states:

A mobile home resident shall only be evicted for any of the following reasons:
(1) Nonpayment of rent.
(2) A second or subsequent violation of the rules of the mobile home park occurring within a six-month period.
(3) If there is a change in use of the park land or parts thereof.
(4) Termination of mobile home park.

In addition, under section (b) which sets forth the procedure for evicting a mobile home resident, the owner is required to notify the resident of the particular breach or violation of the lease. Our reading of the statute leads us to conclude that the Act applies only when a lease is in effect. Childs reaffirms our ruling that the provisions in the MHPRA apply only to evictions under a leasehold. A landlord has a right to eject a tenant once the lease has expired.

The trial court in this case also relied on Malvern Courts, Inc. v. Stephens, 275 Pa.Super. 518, 419 A.2d 21 (1980). Malvern, however, concerned an eviction, not an ejectment. In Malvern, an eviction was sought during the term of the lease for one of the reasons enumerated under the MHPRA. The eviction was disallowed because the notice requirements of the MHPRA were not met. The protection referred to in Malvern applies only during the lease term and offers more protection to mobile-home park tenants than that offered by the Landlord Tenant Act. Malvern adds nothing to the argument about whether the MHPRA applies after the lease term has expired. The court in Malvern spent considerable time in discussing the intention of the legislature in promulgating the Act. While we agree that the legislation was designed to provide protection to mobile home owners in order to prevent arbitrary evictions at substantial expense to park residents, we note that this only pertains to situations arising during the lease term.

Appellees’ lease, in the instant case, had expired. Appellant was not evicting the resident, which would require the protection provided by the Act, but was ejecting the resident because a lease no longer existed. Therefore, the Landlord’s rights of possession in the instant case was covered by the Landlord Tenant Act, and Appellant, Landlord, is entitled to recover possession of said premises. Because there was no lease, Appellant in this present action is not bound by the MHPRA, and the verdict entered in favor of Appellees is not proper and must be reversed.

Order reversed and judgment entered in favor of Appellant. Jurisdiction relinquished.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the majority that our decision in Childs Instant Homes, Inc. v. Miller, 416 Pa.Super. 602, 611 A.2d 1208 (1992), distinguished actions for evictions and actions for ejectment. Thus, on the basis of that precedent our decision is supportable and a logical extension of that decision and, for that reason, I concur with the majority’s decision. However, I am not entirely certain that our legislature had such a distinction in mind when drafting the act in question. Appellees, in their brief, quote Representative Manderino in legislative session as follows:

The entire purpose of not allowing eviction at the expiration of any lease period is based on the fact that residents of these parks don’t have much facility in moving that mobile home, which may be their life investment, to another mobile home park. In many communities, zoning ordinances prohibit the moving of that mobile home to an individual lot. This is the guts of the bill.

From Pa. Legislative Journal, House, 2078 et seq. July 15, 1979. Further, the Mobile Home Park Rights Act, 68 Pa.C.S.A. § 398.1, requires the following notice to be provided all lessees of mobile home parks:

The rules set forth below govern the terms of your lease or occupancy agreement with this mobile home park. The law requires all of these rules to be fair and reasonable.
You may continue to stay in this park as long as you pay your rent and other reasonable fees, service charges and assessments hereinafter set forth and abide by the rules of the park....

68 Pa.C.S.A. § 398.4. The act then lists all the reasons upon which a tenant can be evicted and sets forth guidelines for such an eviction. Two of the reasons stated for allowing evictions is if there is a change in use of the park land or parts thereof or if the park is terminated.

The quote from Representative Manderino coupled with the provisions of the Act, which allows a tenant to stay in a park as long as they pay the rent and abide by the rules, in my opinion, supports a strong argument that the legislature meant to allow a tenant to stay in a mobile home park indefinitely as long as the tenant paid the rent and assessments and abided by the rules and as long as the park was in the business of being a mobile home park. If this indeed was their intent, I trust that in the wake of our decision today they will take appropriate steps to amend the act to clearly enunciate that intent.

      . Read in this fashion the act would represent a careful balancing of the interests of the two relevant parties. By providing grounds for evicting a tenant which include violation of rules, nonpayment of rent and the ending of the park’s existence as a mobile home park the interests of the owner(s) of a mobile home park are protected. They will not be forced to live with a troublemaking or nonpaying tenant nor can they be forced to stay in business simply because there are tenants who need a place to live. On the other hand, a tenant would be assured a place to live and be protected from capricious expulsion from the park as long as he or she lived by the rules and payed the rent and would not be exposed with the problem addressed by Representative Manderino above.


author: BROSKY, Judge.

text:
    657 A.2d 997
    COMMONWEALTH of Pennsylvania v. Joseph Matthew MROZEK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1994.
    Filed April 26, 1995.

      Patrick J. Thomassey, Monroeville, for appellant.
    Richard E. Bower, Asst. Dist. Atty., Uniontown, for Com., appellee.
    Before DEL SOLE, FORD, ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted of first degree murder in a jury trial. Appellant raises several issues for our review, including whether the court erred in allowing testimony of his attorney’s secretary regarding an inculpatory statement he made to her when he called to enlist the aid of his attorney regarding the impending homicide charges upon which he was eventually convicted. We vacate and remand.

The charges in question stem from the killing of Danette Ritz in the early morning hours of July 3, 1990. Responding to a phone call from appellant’s brother, emergency personnel found Ms. Ritz dead on Royal Road shortly after 3:10 A.M. on July 3, 1990. An autopsy performed later revealed that the victim had sustained two gunshot wounds to her head. There was also an entry and exit wound through her right wrist.

According to witnesses, appellant and Ms. Ritz had been in a sometimes stormy relationship for a period of time. On the night of the murder, appellant and Ms. Ritz had been seen together at a local tavern past midnight. They were also seen together at appellant’s nephew’s home between 1:00 and 1:30 A.M. Alex Lukasevic, who lived on Royal Road, testified that he was awake at 2:30 A.M. July 3rd and heard two gunshots, seconds apart, down in the hollow. Appellant’s brother Brian testified that appellant came to his room in the early morning hours and said that he thought Danette had been shot down on the “lower road.” Brian went to the location appellant had indicated and found Danette lying there. He checked for a pulse but could not find one. He then returned home and called for an ambulance. After appellant told Brian that Danette had been shot, appellant was not seen by his family for a few days.

On the day following the murder of Danette Ritz, appellant appeared at the District Attorney’s office for questioning in connection with the murder of Danette Ritz accompanied with attorney Sam Davis. It would appear that earlier in the day appellant phoned Attorney Davis, with whom he had a professional relationship from earlier representations. The phone was answered by Davis’ secretary, Melissa Shupe. According to Ms. Shupe, appellant asked to speak to Attorney Davis. Ms. Shupe called Attorney Davis in his office and asked if he would speak to appellant. Mr. Davis responded that he was with clients and was not then available to speak with appellant. When Ms. Shupe told appellant that Mr. Davis was unavailable to speak with him, appellant responded that it was very important that he speak with Mr. Davis and asked her if she could try again to get Mr. Davis to speak with him. Ms. Shupe again spoke with Attorney Davis and relayed the message of urgency but Mr. Davis still declined to speak with him. When Ms. Shupe told appellant this, appellant responded, “Honey, I don’t think you understand. I’ve just committed a homicide. I have to talk with Sam.” When Ms. Shupe relayed this message Attorney Davis answered the phone and spoke with appellant.

On July 22, 1990, a vehicle registered to appellant’s father and known to be driven by appellant was found at a truck stop in North Lima, Ohio. The car was confiscated and found to contain blood splatterings. Samples were taken and DNA testing was conducted. The tests revealed a match with the blood of the victim. Appellant was arrested formally on homicide charges in December of 1990. Before the case came to trial the District Attorney was informed that appellant had made an inculpatory statement to Ms. Shupe. Ms. Shupe was subpoenaed to testify after which appellant filed a motion to suppress the evidence on the basis of the attorney-client privilege. The court ruled against appellant and, ultimately, Ms. Shupe testified as outlined above. Appellant was convicted of first degree murder. He then filed a motion in arrest of judgment which was denied and this appeal followed.

The question we must decide is whether an inculpatory statement made to an attorney’s secretary which is made with the purpose of seeking legal assistance and representation in a criminal matter is a privileged communication. We conclude that it is. The generally recited requirements for assertion of the attorney-client privilege are:

1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.

United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.C.Mass.1950).

In the present case, all of these requirements have been met with respect to the communication in question. Appellant called his attorney, (with whom he already had a professional relationship), for the purpose of retaining him to defend against murder charges which he anticipated would be filed against him; the communication was made to the attorney’s secretary, a subordinate; the communication was not in the presence of strangers; the communication was made expressly to get the attorney to speak to him regarding the representation and the privilege was both claimed and not waived.

In concluding that the communication was not privileged the court indicates that appellant, at the time of the communication, had not yet spoken to attorney Davis nor consulted him regarding a defense, thus, the court concluded, there was not a confidential communication. However, this conclusion overlooks the full scope of the first requirement which indicates that the holder of the privilege is or sought to become a client. Not only had attorney Davis represented appellant in the past, his phone call in which the communication was made was clearly for the purpose of retaining Attorney Davis to represent him. Thus, not even considering the fact that appellant already had a pre-existing attorney-client relationship with Davis, the fact that appellant called to seek legal assistance would satisfy the first requirement.

Although we have found no Pennsylvania cases where communications prior to the establishment of a formal attorney-client relationship were at issue, the authority exists to support the proposition that an initial communication with an attorney can be privileged despite a lack of a formal attorney-client relationship. In Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961), the Ohio Supreme Court stated “[i]n order for a person to have complete freedom in seeking the services of an attorney, it necessarily follows that disclosures made by such a person to an attorney with the view of enlisting the attorney’s services in his behalf fall within the rule making communications between an attorney and his client privileged.... In other words, communications made by a person to an attorney with the view of retaining the attorney to act on his behalf constitute privileged communications. It might well be said that a tentative attorney-client relationship exists during such period.” 173 N.E.2d at 895. A similar statement was made by the Criminal Court of Appeals of Oklahoma in Hurt v. Oklahoma, 303 P.2d 476 (Okl.Cr.App. 1956). The court quoted an earlier decision stating “[a]n attorney is employed in his professional capacity when he is voluntarily listening to a client’s preliminary statement. It is not necessary that any retainer should have been promised, paid, charged, or demanded, and it makes no difference even though the services are gratuitous.” Id., 303 P.2d at 481. (Quoting from Evans v. State, 5 Okla.Crim. 643, 115 P. 809 (1911).)

The trial court also appears to conclude that Attorney Davis’ secretary is not a subordinate for purposes of the privilege. Again, we disagree. The trial court quoted Wig-more in the following fashion:

The privilege protects communication to the attorney’s clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.

Citing 8 Wigmore Evidence § 2301. However, having made the above recitation, the court, almost inexplicably, finds Ms. Shupe not to be a subordinate. That Ms. Shupe was attorney Davis’ subordinate is borne out not only by the fact that she works for him and takes orders from him, but also from the fact that she acts as the main liaison between Davis and his clients. Indeed, in the present case, despite two unsuccessful attempts, appellant could not even speak directly with Attorney Davis until after appellant had disclosed the communication at issue to Ms. Shupe who then relayed the message directly to Attorney Davis. To suggest that Ms. Shupe was not a subordinate to whom the privilege would apply is to ignore the realities of not only that which took place here, but the realities and common experiences of legal practices everywhere.

Although a review of Pennsylvania law does not yield many cases where the privilege has been applied to communications to individuals other than an attorney, our conclusion that the communication made to Ms. Shupe would implicate the attorney-client privilege is supported by our previous decision in Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981).

In Hutchinson we affirmed a decision of the lower court that a disclosure made to an investigator from the public defender’s office should be afforded the protection of the attorney-client privilege. Citing Wigmore and other cases, we noted that the privilege applied not only to communications made to an attorney, but also to an attorney’s agents. A similar result was reached by the Supreme Court of Illinois in People v. Knippenberg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977). In reversing a decision to allow impeachment with statements made by a defendant to an investigator the Court quoted the same section of Wigmore as did the trial court here, § 2301. The court further added: “As the use of law clerks, secretaries and stenographers is common and necessary for an attorney as a practical matter, realities of practice often require an attorney’s use of investigators.” 362 N.E.2d at 684. Thus, the Illinois Supreme Court did not hesitate to afford the attorney-client privilege to communications made to an attorney’s employee.

We have found only a few cases where the attorney-client privilege involved disclosures to or in the presence of a secretary. A communication to an attorney in the presence of a secretary has been found protected in State v. Krich, 123 N.J.L. 519, 9 A.2d 803 (1939) and Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934), while disclosures to three secretaries outside the presence of an attorney was found not privileged in People v. Mitchell, 58 N.Y.2d 368, 461 N.Y.S.2d 267, 448 N.E.2d 121 (1983). Although, at first blush the holding in Mitchell may appear inconsistent with our decision here, the reasoning relied upon in that case is not applicable here. Thus, we find it distinguishable.

In People v. Mitchell, John Mitchell, who was awaiting trial for the stabbing death of his girlfriend concluded, despite having no specific recollection of the fact, that he must have committed another murder when he awoke next to a women who had been stabbed several times. Distraught he went to his attorney’s office only to find the attorney, Felix Lapine, out at the time. He left but returned shortly and began telling the woman in the reception area what had happened. While he was rambling on about the incident another woman entered the area but he continued talking about it. Shortly thereafter, Lapine’s secretary entered the room and seeing Mitchell there asked him what was wrong. Mitchell responded by telling her that he had awoke next to a dead body and he felt that he had done it. The testimony of the three women was allowed over objection. Upon appeal the decision was upheld. However, noteworthy for our purposes, the decision that the communications were not privileged did not hinge upon the fact that the communications were made to secretaries as opposed to an attorney. Rather, the court concluded that Mitchell, considering the context in which the statements were made, had failed to carry his burden that the statements “were intended to be confidential and made to an employee of his attorney for the purpose of obtaining legal advice.” Id., 461 N.Y.S.2d at 271, 448 N.E.2d at 124.

Since the attorney-client privilege can attach to communications made to an attorney’s employees and agents, and can also pertain to preliminary communications with regard to the retaining of his services, we must conclude that the inculpatory statement made by appellant in the present case is privileged. As such, it was error to allow the testimony of Ms. Shupe and, in consideration of the tremendously prejudicial nature of the statement, a new trial must be granted.

Judgment of sentence vacated. New trial granted. Jurisdiction relinquished.

      . Ms. Shupe did not recall with certainty when the phone call took place. Of course, the circumstances of the case and the nature of the communication strongly suggest that it occurred on the morning of July 3, 1990, after Ms. Ritz had been shot and before appellant appeared at the D.A.’s office with Attorney Davis.

      . Webster's New Collegiate Dictionary defines subordinate as one "placed in or occupying a lower class or rank ... submissive to or controlled by authority....”


author: HUDOCK, Judge:

text:
    657 A.2d 1001
    Neil BONNER, Appellant, v. Norman FAYNE, R.K.R. Hess Associates, Joseph Martin, t/a Martin Construction, and Supermason Enterprises, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued March 16, 1995.
    Filed May 3, 1995.

      Mark J. Smith, Philadelphia, for appellant.
    Jonathan Mark, Stroudsburg, for appellee R.K.R. Hess Associates.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HUDOCK, Judge:

This is an appeal from the summary judgment entered on July 11, 1994, in favor of defendant R.K.R. Hess Associates (RKR) and against Appellant. This action arose as a result of Appellant’s fall of approximately fifty feet into an air shaft between two buildings owned by Norman Fayne (Fayne). Fayne hired RKR, an architectural/engineering firm, to draw plans for renovation of three buildings owned by Fayne. The buildings are linked by a series of walkways with railings and ladder stairways. On the night of February 13, 1990, Appellant was attending a party in Apartment 10 of one of the buildings. It was possible to access the roof and connecting walkways by means of exiting windows in the apartment which was located on the third floor of the building. The walkway-connecting the building’s upper roof to a middle roof of the adjacent building involved a ladder stairway between the two walkways. During renovation, the ladder was removed, leaving the two walkway railings disconnected. An air shaft was created between the two buildings with a wire mesh positioned over the air shaft. At some point in the evening, Appellant left the party and the apartment by means of a window. Appellant allegedly fell. He is unable to remember anything that happened after the accident, and there were no eyewitnesses to the accident. He was found at the bottom of the air shaft in the early morning hours of February 14, 1990. As a result of the fall he sustained severe injuries requiring extensive surgery. Appellant brought an action against Fayne, RKR, and the subcontractor, Joseph Martin, t/a Martin Construction (Martin). RKR, Martin, and Fayne joined Supermason Enterprises, Inc. (Supermason) as an additional defendant.

Preliminary objections by RKR were granted striking part of the allegations of Appellant’s complaint. After answering, RKR filed a motion for summary judgment which is the subject of this appeal. We quash.

Appellant raises the following issues in his appeal:

I. Whether the court below erred in granting [Appellees’] Motion for Summary Judgment when the evidence, seen in the light most favorable to [Appellant], clearly raised an inference as to how [Appellant] fell down an air shaft even though there is no direct evidence of how [Appellant] fell.
II. Whether the court below erred in finding that, as a matter of law, [Appellee RKR] had no duty to an injured party whose injuries were caused by a man-made defect in property, when [Appellee RKR] undertook to advise the owner of the property concerning the removal of a stairway which resulted in the creation of the defect.

Appellant’s Brief at p. 3.

We must first determine whether this appeal is properly before us because it is from an order granting summary judgment as to only one of several defendants named in the complaint filed by Appellant. Pennsylvania Rule of Appellate Procedure 341(c), which was amended May 6, 1992, reads:

(c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order.

Pa.R.A.P. 341(c), 42 Pa.C.S.A. By order dated January 10, 1994, our Supreme Court made the May 6, 1992 amendments to Rule 341 applicable to all orders entered on or after March 1, 1994, regardless of the date the action was originally commenced. Therefore, this amended rule was in effect at the time the court entered summary judgment in this matter on July 11, 1994. As the Commonwealth Court recently held in Womeldorf by Womeldorf v. Cooper, — Pa.Commw. -, 654 A.2d 238 (1995):

The effect of the 1992 amendments to the Rules of Appellate Procedure was to create two classes of interlocutory orders that are not appealable as of right: 1) orders that dispose of less than all claims or parties, and 2) all other interlocutory orders. Appeals from interlocutory orders that dispose of less than all claims or parties are governed by Pa.R.A.P. 341(c). Appeals from all other interlocutory orders are governed by Pa.R.A.P. 312.

Id., 654 A.2d at 240-41 (footnote omitted). As the notes accompanying Rule 341 state:

The following is a partial list of orders previously interpreted by the courts as appealable as final orders under Rule 341 that are no longer appealable as of right unless the trial court or administrative agency makes an express determination that an immediate appeal would facilitate resolution of the entire case and expressly enters a final order pursuant to Rule 341(c):
‡ ‡ ‡ ‡
(4) an order dismissing an action as to less than all plaintiffs or as to less than all defendants but leaving pending the action as to other plaintiffs and other defendants!)]

Notes, Pa.R.A.P. 341.

The order involved in our present case reads as follows:

AND NOW, this 11th day of July, 1994, upon consideration of the Motion for Summary Judgment of Defendant RKR Hess Associates, IT IS HEREBY ORDERED that the Motion is GRANTED. Judgment is entered in favor of Defendant RKR Hess and against Plaintiff Neil Bonner on the Complaint.
Judgment is entered in favor of Defendant RKR Hess Associates on the cross-claims filed by Defendants Norman Fayne, Joe Martin Contracting, and Supermason Enterprises, Inc. The Complaint and cross-claims are dismissed as to RKR Hess Associates.

Order, 7/11/94, at p. 1.

The order grants summary judgment in favor of only RKR but leaves Fayne, Martin, and Supermason in place. Therefore, the court did not enter a summary judgment dismissing the action against all parties. Similarly, the record shows no modification to this order and, therefore, does not show an “express determination that an immediate appeal would facilitate resolution of the entire case.” Pa.R.A.P. 341(c). This appeal is premature, and we therefore must quash it.

Appeal quashed.

      . The summary judgment also dismissed the counter-claims against RKR by the other defendants.


text:
    657 A.2d 1003
    COMMONWEALTH of Pennsylvania v. Robert A. ROBBINS, Appellant. (Two Cases.)
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed May 4, 1995.

      Robert A. Gonos, Wilkes-Barre, for appellant.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

Robert A. Robbins was convicted after non-jury trials in two cases. He was found guilty of violating the Minimum Speed Regulation for driving too slowly in the first case, and sentenced to pay a $25.00 fine, a fine of $10.00 to Emergency Medical Services Operating Fund, and a surcharge to the Catastrophic Loss Benefit Continuation Fund of $30.00. In the second case, he was found guilty of Reckless driving and two counts of Harassment. He was sentenced to pay a fine of $300.00 for each Harassment conviction and $200.00 for Reckless driving. The two cases were consolidated on appeal. We affirm.

Appellant argues that the evidence presented for each conviction was insufficient to prove that he committed all of the elements of the crimes, and he claims that the evidence was insufficient to prove guilt beyond a reasonable doubt for each of the offenses. “In reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt.” Commonwealth v. Rollins, 525 Pa. 335, 339, 580 A.2d 744, 746 (1990). We also must determine whether the evidence would allow the trier of fact to find every element of the crimes proven beyond a reasonable doubt. Commonwealth v. Woods, 432 Pa.Super. 428, 638 A.2d 1013 (1994). “[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [trier of fact] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Jones, 431 Pa.Super. 475, 478, 636 A.2d 1184, 1186 (1994). The trier of fact is free to believe all, some or none of the evidence in a criminal trial. Woods, supra.

Section 3364(a) of the Pennsylvania Motor Vehicle Code states:

(a) Impeding movement of traffic prohibited. — Except when reduced speed is necessary for safe operation or in compliance with law, no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic.

75 Pa.C.S.A. § 3364(a).

Patrol Officer Boone of the South Centre Township Police Department testified that while watching traffic on Route 11, he received a radio transmission about a large traffic backup travelling south on Route 11. Shortly after that, he observed Appellant drive by at a very slow pace without his four-way lights on. Officer Boone was unable to clock the exact speed that Appellant was driving. He testified that the speed limit for that road is 45 miles per hour and Appellant was not moving at that rate of speed. He charged Appellant with impeding traffic because about 17 to 20 cars were backed-up behind Appellant’s vehicle in a no-passing zone. The operators of the other vehicles were angry, blowing their horns and raising their fists.

The Commonwealth also presented the testimony of Chief Lucas of Briar Creek Township. He testified that he was on routine patrol and was driving out of the Ames parking lot onto Route 11 when he noticed a line of traffic of about 18 to 20 cars. Chief Lucas was sure that the lead vehicle was being operated by Appellant whom he knows very well and he also knows his car. He further testified that he began driving behind this string of traffic, and Appellant was travelling 17 miles per hour in a 35 mile an hour no-passing zone. Chief Lucas based this speed on the speedometer in his vehicle.

Appellant argues that the Commonwealth failed to establish the actual speed that he was travelling, nor was it established that his actions “impeded the normal and reasonable movement of traffic.” We disagree. The Commonwealth did not have to show that Appellant was travelling at a certain speed, as if this was a case of exceeding the maximum speed limits. All that needed to be shown was that Appellant was operating his vehicle at such a slow speed that it was an impediment to the normal and reasonable movement of traffic. The testimony of the two officers indicated that Appellant was driving very slowly at a rate of speed of about 17 miles per hour through no-passing zones with speed limits of 35 and 45 miles per hour. The officers also mentioned that between 18 or 20 cars were trailing behind Appellant and the operators of those vehicles were angry, raising their fists and honking their horns at Appellant.

Appellant believes that the inconsistencies in the officers’ statements made their testimony unreliable and created reasonable doubt. Even though Officer Boone testified that the speed limit where he observed Appellant operating his vehicle is a 45 mile per hour zone and Chief Lucas testified that he saw Appellant driving slowly in a 35 mile per hour zone, this is not a contradiction. According to Chief Lucas, the speed limit changes on the road that Appellant was travelling which is why the officers testified differently regarding the speed limit where each of them observed Appellant. He also complains that Officer Boone’s credibility was diminished by his testimony that his sight distance on Route 11 was 1000 feet, and then he testified that his sight distance was approximately 1000 yards in each direction. Even though Officer Boone testified differently regarding his sight distance, the trial court nevertheless favorably assessed his credibility.

Having reviewed all of the evidence and the reasonable inferences which may be drawn from that evidence in a light most favorable to the verdict winner, we find that the evidence was sufficient to establish all of the elements of the offense and to prove guilt beyond a reasonable doubt.

In the second case, Appellant was convicted of violating 75 Pa.C.S.A. § 3736 of the Vehicle Code and 18 Pa.C.S.A. § 2709 of the Crimes Code. We have thoroughly considered Appellant’s arguments, the applicable law and the record in this case. The Honorable Gailey C. Keller, P.J., properly resolved the claims raised by Appellant in his Opinion dated July 27, 1994. Therefore, we shall not expand upon the discussion set forth therein.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3364.

      . We note that Appellant's de novo hearing in this case was held on December 9, 1993. On that same day, he was convicted and sentence was imposed. Although Appellant should have been given an opportunity to file post-verdict motions since new Rule 1410(D) was not in effect at the time of his conviction, we shall overlook this procedural irregularity and review his claims. See Commonwealth v. Buckshaw, 433 Pa.Super. 254, 640 A.2d 908 (1994). The record in this case further reveals that Appellant was not directed to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), nor did the trial court file an opinion.

      . 75 Pa.C.S.A. § 3736.

      . 18 Pa.C.S.A. § 2709.


author: PER CURIAM:

text:
    657 A.2d 1005
    COMMONWEALTH of Pennsylvania v. Michael BUCKNOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Decided March 23, 1995.
    Reargument Denied May 22, 1995.

      Bradley S. Bridge, Asst. Public Defender, Philadelphia, for appellant.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.
    Before WIEAND, BECK and BROSKY, JJ.
   PER CURIAM:

Michael Bucknor was tried non-jury and was found guilty of aggravated assault, possession of an instrument of crime and violation of the Uniform Firearms Act. He was sentenced on his conviction for aggravated assault to serve a term of imprisonment for not less than seven (7) years nor more than twenty (20) years. Concurrent terms of imprisonment were imposed on the convictions for possessing an instrument of crime and violating the Uniform Firearms Act. Following the denial of a motion to modify sentence, Bucknor filed this appeal in which he asserts that it is improper for the crime of aggravated assault to be graded more severely and, thus, carry a greater penalty, than the crime of attempted murder, inasmuch as aggravated assault is a lesser included offense of attempted murder. Bucknor argues, therefore, that the imposition of a sentence for aggravated assault, which is greater than that permitted by law for the crime of attempted murder, is unconstitutionally disproportionate and irrational and violates the due process, equal protection and the cruel and unusual punishment clauses of the United States and Pennsylvania Constitutions.

In Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992), the Superior Court, sitting en banc, held that aggravated assault was not a lesser included offense of attempted murder and that, therefore, it did not merge with attempted murder for purposes of sentencing, even where convictions for both crimes were based upon a single criminal act. The Supreme Court, however, granted allocatur and, on October 26, 1994, reversed the decision of the Superior Court. The Supreme Court held that aggravated assault was a lesser included offense of attempted murder and that, when a defendant had been convicted of both aggravated assault and attempted murder, those offenses merged for purposes of sen-tenting. See: Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994).

The instant appeal is readily distinguishable from Anderson. In this case, appellant was charged only with aggravated assault; and, therefore, there was no issue as to whether the conviction for aggravated assault had merged with attempted murder for purposes of sentencing. The precise issues presented herein by appellant were addressed by the Superior Court in Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458 (1992) (en banc), appeal dismissed, 537 Pa. 350, 643 A.2d 1078 (1994). In Spells, the same en banc panel of the Superior Court which had decided the Anderson case observed that, regardless of whether aggravated assault was a lesser included offense of attempted murder, where attempted murder was not charged, the sentence imposed for aggravated assault stood alone “because no offense within which it could be included or into which it may merge exists.” Commonwealth v. Spells, supra, 417 Pa.Super. at 238, 612 A.2d at 461. As such, the constitutionality of a sentence imposed for aggravated assault was examined without reference to a lesser included offense analysis. Id. So viewed, the Spells Court held, the fact that a conviction for aggravated assault was subject to a mandatory minimum sentencing provision, while the crime of attempted murder was not subject to the same provision, did not constitute cruel and unusual punishment, nor did it violate due process or equal protection of the law. See also: Commonwealth v. Brown, 417 Pa.Super. 165, 172, 611 A.2d 1318, 1321 (1992), appeal dismissed, 537 Pa. 350, 643 A.2d 1078 (1994); Commonwealth v. Pendola, 416 Pa.Super. 568, 611 A.2d 761 (1992), allocatur denied, 535 Pa. 617, 629 A.2d 1378 (1993). Appellant acknowledges that Spells, Brown and Pendola are controlling in the instant case, but he urges that we reconsider those decisions.

Initially, we observe that the Supreme Court also granted allocatur in Spells and Brown, but, on July 1, 1994; the Court dismissed the appeals in those cases as having been improvidently granted. See: Commonwealth v. Spells, 537 Pa. 350, 643 A.2d 1078 (1994). The Supreme Court’s subsequent decision in Commonwealth v. Anderson, supra, 538 Pa. 574, 650 A.2d 20, as we have already observed, was concerned only with the issue of merger of sentences, and its determination that aggravated assault was a lesser included offense of attempted murder was in no way inconsistent with the reasoning of the Superior Court in the Spells, Brown and Péndola decisions. As such, those decisions remain controlling of the outcome in this case.

Instantly, appellant’s conviction for aggravated assault was based upon his shooting of a twenty-seven year old man in the head, causing the victim to lose his right eye and to become partially paralyzed on the left side. We hold that a sentence of imprisonment for not less than seven (7) years nor more than twenty (20) years for an aggravated assault, which is based upon conduct such as appellant’s, is not so disproportionate to appellant’s crime as to constitute cruel and unusual punishment. See: Commonwealth v. Spells, supra, 537 Pa. at 239-245, 612 A.2d at 461-464; Commonwealth v. Brown, supra, 417 Pa.Super. 165, 611 A.2d 1318; Commonwealth v. Pendola, supra, 416 Pa.Super. 568, 611 A.2d 761. Moreover, the fact that the Commonwealth elected to charge appellant solely with aggravated assault, and not with attempted murder, was within the discretionary charging function of the district attorney and did not violate due process. See: Commonwealth v. Spells, supra 537 Pa. at 246, 612 A.2d at 464-465. Appellant is not part of any protected class of persons for purposes of equal protection. “The fact that the legislature may create different penalties for similar kinds of criminal conduct, leaving application of the penalties to the prosecutor’s discretion, creates no classification at all, and does not, therefore, raise an equal protection issue.” Id. at 245, 612 A.2d at 464. Accordingly, appellant’s several challenges to the constitutionality of his sentence for aggravated assault must be rejected.

Even though we are satisfied that appellant’s sentence is not unconstitutional, we are inclined to agree that it is illogical for the crime of aggravated assault, the lesser included offense, to be graded as a felony of the first degree, while attempted murder, the greater included offense, is graded only as a felony of the second degree. In this regard, we echo the following suggestion contained in the Concurring Opinion in Commonwealth v. Spells, supra, 417 Pa.Super. 233, 612 A.2d 458:

Perhaps it would be advisable for the legislature to reevaluate the grading scheme for the offenses of aggravated assault and attempted murder, as well as the exclusion of attempted murder from the purview of the mandatory minimum sentencing provisions.

Id. at 247, 612 A.2d at 465 (Wieand, J., concurring; joined by Beck, J.).

Nonetheless, having found no merit in the constitutional issues advanced by appellant, the judgment of sentence is, as it must be,

AFFIRMED.

      . We decline appellant's invitation to reconsider the prior decisions of the Superior Court in Spells, Brown and Pendola. Even if we disagreed with the analysis in these cases, as a three judge panel we are bound by the rulings of a court en banc.


author: ROWLEY, President Judge.

text:
    657 A.2d 1252
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1994.
    Filed March 22, 1995.
    Reargument or Reconsideration Denied June 1, 1995.

      Robert A. Seiferth, Williamsport, for State Farm Mut.
    Glenn A. Ricketti, Philadelphia, for Universal Underwriters.

      Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   ROWLEY, President Judge.

On October 14, 1988, a motor vehicle driven by Dollie Hill and owned by Kinley’s Subaru, Inc., collided with a motor vehicle driven by Leo Lorson. Hill, whose own vehicle was being repaired by Kinley’s Subaru, was an insured driver under a policy issued by State Farm Mutual Insurance Company (“State Farm”). Kinley’s Subaru was insured under a policy issued by Universal Underwriters Insurance Company (“Universal”). State Farm defended Hill against actions brought by Lorson for damage to his vehicle and by his passenger, Pearl English, for personal injuries. The parties settled the actions for $800.00 and $17,000.00, respectively.

State Farm then filed the present action against Universal, requesting a declaratory judgment as to Universal’s obligations to defend and indemnify Hill, as well as judgment against Universal in an amount equal to 10/11 of the cost of defending and settling the claims against Hill. Following discovery, both parties filed motions for summary judgment.

In an order entered February 19, 1993, the trial court partially granted State Farm’s motion for summary judgment, stating that State Farm “will be awarded fifty (50%) percent of the sum expended in defending and settling the actions brought by Leo E. Lorson and Pearl E. English.” Both parties have filed timely appeals from the order.

APPEAL OF UNIVERSAL AT NO. 219 HARRISBURG 1993

Universal states the first of its two issues as follows:

1. Did the [trial] Court err in determining that the operator of the vehicle, Ms. Hill, was an “insured” of the Defendant Universal ... in light of the definitions provided in their policy of insurance with Kinley Subaru[?]

Brief for Appellant Universal at 1. The remaining issues of both parties concern the allocation of the costs of coverage between the two insurers. Because it will not be necessary to address those issues if we determine that the trial court erred in finding that Ms. Hill was an insured under the Universal policy, we turn first to that question.

Preliminarily, we note that the interpretation of an insurance policy is a question of law for the court. Patterson v. Reliance Insurance Companies, 332 Pa.Super. 592, 596, 481 A.2d 947, 949 (1984). Whether a particular loss is within the coverage of an insurance policy is such a question of law and may be decided on a motion for summary judgment in a declaratory judgment action. Equibank v. State Farm Mutual Automobile Insurance Company, 426 Pa.Super. 354, 359, 626 A.2d 1243, 1244 (1993), appeal denied, 536 Pa. 642, 639 A.2d 28 (1994) (quoting Neil v. Allstate Insurance Company, 379 Pa.Super. 299, 302, 549 A.2d 1304, 1305 (1988), appeal denied, 522 Pa. 578, 559 A.2d 38, 39 (1989)). Accordingly, we will apply our well-settled standard of review in summary judgment matters. See Aetna Casualty and Surety Company v. Roe, 437 Pa.Super. 414, 418-20, 650 A.2d 94, 97 (1994); Equibank v. State Farm, supra, 426 Pa.Super. 354, 626 A.2d 1243; Neil v. Allstate, supra, 379 Pa.Super. 299, 549 A.2d 1304; Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288-89, 515 A.2d 980, 981 (1986). We will not reverse the trial court’s order granting summary judgment absent an error of law or clear abuse of discretion. Aetna v. Roe, supra, 437 Pa.Super. 414, 650 A.2d 94; Danko v. Erie Insurance Exchange, 428 Pa.Super. 223, 226, 630 A.2d 1219, 1221 (1993), appeal granted, 536 Pa. 642, 639 A.2d 27 (1994) (citing Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 608 A.2d 1061 (1992)).

We begin our analysis by reviewing the portions of the Universal policy on which the trial court based its finding. In the “Garage” section of the policy, Universal states that

WE will pay all sums the INSURED legally must pay as damages ... because of INJURY to which this insurance applies caused by an OCCURRENCE arising out of GARAGE OPERATIONS or AUTO HAZARD.

Universal Policy at 32. “Auto hazard” is defined in the same section as follows:

“AUTO HAZARD” means the ownership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and:
(1) used for the purpose of GARAGE OPERATIONS or
(2) used principally in GARAGE OPERATIONS with occasional use for other business or non-business purposes or
(3) furnished for the use of any person or organization.

Universal Policy at 32. Also provided is an explanation of “who is an insured”:

With respect to the AUTO HAZARD:
1. YOU;
2. Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the AUTO must be by YOU or within the scope of YOUR permission;
3. Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.

Universal Policy at 33.

Universal proffers several theories to support its claim that the trial court’s decision was an error of law. First, Universal argues that Ms. Hill was not a person “required by law to be an INSURED” because she does not fall within the definition of the term “insured” that is provided in § 1702 of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq. That definition reads as follows:

“Insured.” Any of the following:
(1) An individual identified by name as an insured in a policy of motor vehicle liability insurance.
(2) If residing in the household of the named insured:
(i) a spouse or other relative of the named insured; or
(ii) a minor in the custody of either the named insured or relative of the named insured.

75 Pa.C.S. § 1702.

It is beyond dispute that Ms. Hill was not an insured as that term is defined in § 1702. Nevertheless, our analysis does not end there. Section 1702 explains that “[t]he following words and phrases when used in this chapter [i.e., the MVFRL] shall have the meanings given to them in this section unless the context clearly indicates otherwise ...” (emphasis added). The statute does not indicate that the definition of “insured” offered there is also meant to serve as the explanation of who is “required by law to be an insured” under a policy such as that issued by Universal in this case. Conversely, the Universal policy does not indicate that who is “required by law to be an insured” is to be determined by reference to § 1702 of the MVFRL. In fact, the persons denoted as insureds in § 1702 (named insureds and relatives residing in their households) are essentially included in the definition given in the auto hazard section of the Universal policy. If the phrase “[a]ny other person ... required by law to be an insured” is to have any meaning at all, therefore, it cannot be limited to those persons specified in § 1702.

As support for its argument, Universal cites this Court’s opinion in Stout v. Universal Underwriters Insurance Company, 320 Pa.Super. 240, 467 A.2d 18 (1983). In that case, appellants sought to recover damages for injuries suffered in 1970 when the automobile in which they were traveling was struck by an automobile driven by one Clyde Jones and owned by Hamilton Buick & Pontiac, Inc., which had lent the automobile to Jones while his mother’s vehicle was being repaired. Appellants had sued Jones and obtained verdicts in their favor. When the judgments entered against Jones went unpaid, however, appellants filed an action against Universal, Hamilton Buick’s insurer. Appellants asserted that the “garage liability” portion of the Universal policy extended coverage to Jones. This Court rejected their argument, concluding that Jones was not an insured under the policy but rather that the policy covered the hazard to the insured (i.e., Hamilton Buick) of renting a vehicle to a customer whose car was being repaired.

Universal suggests that we apply the reasoning used in that case to the facts of the present one. We decline to do so. We note, first, that the opinion is a plurality, one member of the three-member panel having concurred in the result and a second having taken no part in the case. Accordingly, the opinion is not binding upon us.

Moreover, Stout was not decided under the MVFRL but under the Motor Vehicle Safety Responsibility Act, 75 P.S. § 1277.1 et seq. (repealed). The Act did not require compulsory insurance on the part of the owner or operator of a motor vehicle, but instead aimed to ensure financial responsibility after an accident had occurred. Consequently, the automobile hazard section of the Universal policy at issue did not refer to other persons “required by law to be insured.” We conclude, therefore, that this Court’s decision in Stout does not resolve the issue before us.

Finally, Universal directs us to the following provision in the garage portion (Part 500) of the policy:

EXCLUSIONS — This insurance does not apply to:
.....
(h) INJURY arising out of the ownership, maintenance, repair, use, loading or unloading of any[ ]
(1) AUTO, while:
.....
(iii) leased or rented by YOU to others, except to:
.....
(2) YOUR customers for a term of two months or less when it temporarily replaces the CUSTOMER’S AUTO....

Universal Policy at 33-35. Without more, this provision indicates that coverage extends to injury arising out of the use of an automobile leased or rented by Kinley’s Subaru to a customer as a replacement for the customer’s vehicle for a period of no longer than two months. Universal points, however, to another provision, Endorsement No. 054, “Customer Rental Coverage Excluded,” which indicates that sub-paragraph (2), quoted above, is deleted from Exclusion (h)(l)(iii). See Universal Policy at 80. Therefore, Universal argues, the policy does not provide coverage for injury arising out of the use of an automobile leased or rented to a customer such as Hill.

At the beginning of the “Endorsements Applicable” section of the policy, within which Endorsement No. 054 appears, is the following language: “In consideration of the premium for this policy, each of the following endorsements apply when the number of the endorsement is shown in the declarations.” Universal Policy at 60 (emphasis added). The declarations pages for the policy period June 1, 1988 to June 1, 1989, begin with the explanation that

THIS POLICY INSURES ONLY THOSE COVERAGES AND PROPERTY SHOWN IN THE DECLARATIONS MADE A PART OF THIS POLICY.

Universal Policy at 1-A. Endorsement No. 054 is not shown in the declarations. For that reason, the trial court concluded that it is not applicable.

Universal attempts to overcome the effect of this omission by noting that Endorsement No. 054 is listed in the Table of Contents of the policy. Universal notes, in addition, that Ms. Hill did not sign a lease or rental contract or pay any money for the use of Kinley’s vehicle. Therefore, Universal argues, Ms. Hill’s use of the vehicle does not fall within the scope of Exclusion (h)(1)(iii), rendering irrelevant the trial court’s finding that Endorsement No. 054 is inapplicable.

To resolve the dispute as to Ms. Hill’s status under the Universal policy, we rely upon fundamental principles governing the interpretation of insurance contracts. One such principle is that if the language of a policy prepared by an insurer is ambiguous, obscure, uncertain, or susceptible to more than one construction, we will interpret it most strongly against the insurer and accept the construction most favorable to the insured. Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 106, 496 A.2d 28, 31 (1985). Where, as here, the dispute is between two insurers, we will consider each policy from the perspective of the insured and construe each policy most strongly against the insurer. Erie Insurance Exchange v. Transamerica Insurance Company, 516 Pa. 574, 580, 533 A.2d 1363, 1366-67 (1987), cited in Pennsylvania National Mutual Casualty Insurance Company v. Traveler’s Insurance Company, 405 Pa.Super. 149, 592 A.2d 51 (1991), appeal denied, 529 Pa. 622, 600 A.2d 538 (1991). A policy provision is ambiguous if reasonably intelligent persons, considering it in the context of the policy as a whole, would honestly differ as to its meaning. Patterson v. Reliance, 332 Pa.Super. at 596, 481 A.2d at 949. Finally, we are mindful that in close or doubtful cases under the MVFRL, we are to resolve the meaning of insurance policy provisions in favor of coverage for the insured. Panichelli v. Liberty Mutual Insurance Company, 435 Pa.Super. 290, 296 n. 3, 645 A.2d 865, 867 n. 3 (1994); Danko v. Erie, 428 Pa.Super. at 229, 630 A.2d at 1222.

State Farm asserts, inter alia, that the “required by law to be an INSURED” provision of the Universal policy is ambiguous. Having considered the provision in the context of the entire policy, we agree. As noted earlier, we cannot simply insert the MVFRL’s definition of “insured” into the phrase in question and thereby know who is an insured under the policy. Exclusion (h)(1)(iii)(2) in Part 500 of the policy does not enlighten us in this regard. The exclusion states that the garage insurance does not apply to injury arising out of the use of an automobile leased or rented by McKinley’s Subaru to others, unless the “other” is a customer using the automobile for two months or less as a temporary replacement for his or her own automobile. As State Farm notes, McKinley’s did not lease or rent the vehicle to Ms. Hill, but instead allowed her to use it without charge as a “loaner.” Therefore, regardless of whether Endorsement No. 054 operates to delete sub-paragraph (2) (i.e., the exception for “YOUR customers ... ”) from the exclusion, it is at least arguable that the exclusion does not apply to Ms. Hill.

Accordingly, we conclude that reasonably intelligent persons can differ as to the meaning of the provisions in the Universal policy which purport to determine Ms. Hill’s status under the policy. That being the case, we interpret the policy against its drafter, Universal, and in favor of coverage for Ms. Hill.

In its second issue, Universal challenges the trial court’s decision to apply to this case the principle that “[w]here two policies of insurance cover a single insured for the same risk and each policy seeks avoidance of coverage either by way of an excess escape clause [sic], such clauses are of no effect and both policies are primary policies of insurance.” Trial Court Opinion at 5-6. Finding that each insurance policy contained such a clause, the trial court prorated the liability between the two policies. Universal argues that while the State Farm policy does in fact contain an unenforceable “escape” clause, the Universal policy contains an “excess” clause which can be and should have been enforced. The effect of Universal’s argument, if successful, would be to place upon State Farm the entire burden of liability.

The distinction between “excess” and “escape” clauses is as follows:

An “excess” clause purports to provide protection to the insured in addition to other coverage which might be available to him. Since it does not provide that supplemental protection until the other policy has been exhausted, it is “excess” to the other coverage. An “escape” clause provides that the company invoking it is relieved from any obligation to the insured if other coverage is available. Because the company may “escape” responsibility under its policy if that clause is given effect, not unexpectedly, “escape” clauses are generally in disfavor with the courts.

Connecticut Indemnity Company v. Cordasco, 369 Pa.Super. 439, 443-44, 535 A.2d 631, 633 (1987) (quoting Insurance Company of North America (INA) v. Continental Casualty Company, 575 F.2d 1070 (3d Cir.1978)). Connecticut Indemnity v. Cordasco, like the case at bar, involved a garage customer who became involved in an accident while driving a “loaner.” The State Farm policy issued to the driver provided that its coverage did not apply in a situation where its insured was driving a vehicle owned by a person or organization in a car business and where the insured or the vehicle owner had any other liability coverage. This Court held the provision in question to be an unenforceable escape clause, noting that “[b]y its very terms, coverage would be available to [the driver] under the State Farm policy if he was not covered under the Connecticut garage policy issued to [the garage].” Id. 569 Pa.Super. at 444, 535 A.2d at 633.

The pertinent Universal policy provision reads as follows:

THE MOST WE WILL PAY — Regardless of the number of INSUREDS or AUTOS insured by this Coverage Part, persons or organizations who sustain INJURY, claims made or suits brought, the most WE will pay is:
1. With respect to GARAGE OPERATIONS and AUTO HAZARD, the limit shown in the declarations for any one OCCURRENCE.
With respect to persons or organizations required by law to be an INSURED, the most WE will pay is that portion of such limit needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits after such other insurance has been exhausted.

Universal Policy at 36. Because the clause does not allow Universal to avoid coverage entirely in any situation in which other insurance applies, Universal argues that this provision is an excess rather than an escape clause.

Nevertheless, case law indicates otherwise. In Automobile Underwriters, Inc. v. Fireman’s Fund Insurance Companies, 874 F.2d 188 (1989), the Third Circuit Court of Appeals analyzed the “other insurance” clause of a Fireman’s Fund policy which provided coverage to a car dealership. The clause provided that if a customer driving a car owned by the dealership had no other available insurance, he or she was insured under the Fireman’s Fund policy up to the limits of the applicable financial responsibility law, and that if he or she had other available insurance for an amount less than the required minimum, he or she was insured under the Fireman’s Fund policy only for the amount necessary to reach the required minimum. The customer in question had other insurance which exceeded the statutory minimum required by Pennsylvania. Concluding that such a “super-escape/reduced limits clause” should be construed as it applied to the facts of the case, rather than hypothetically, the Court of Appeals held that the clause at issue was an escape clause which should be stricken.

In Fryer v. Allstate Insurance Company, 392 Pa.Super. 418, 573 A.2d 225 (1990), this Court applied the reasoning of Automobile Underwriters v. Fireman’s Fund to reach a similar result. In that case, Michele Fryer was involved in an accident while driving an automobile which had been loaned to her by the dealership, Verrena Buick-Olds, that was servicing her car. The insurance policy issued to Verrena by Harleysville Insurance Company included a clause providing that a customer using a covered automobile with Verrena’s permission was an insured only for the amount needed to meet the statutory minimum if no other insurance, or inadequate insurance, was available. Fryer was an insured under her father’s Allstate policy. This fact, the Court noted, relieved Harleysville of liability to Fryer. Accordingly, this Court concluded that “the provision at issue .. . falls within the classic definition of an unenforceable escape clause” and therefore that “the Harleysville policy provisions must be enforced as if the escape clause did not exist.” Id. at 423, 573 A.2d at 228.

We are presented with a similar situation in the present case. If the pertinent clause in the Universal policy is applied to the facts of this case, the effect is to allow Universal to “escape” any liability. We hold, therefore, that the trial court did not abuse its discretion in finding the clause to be an unenforceable escape clause.

APPEAL OF STATE FARM AT NO. 218 HARRISBURG 1993

The trial court apportioned the liability of the two insurers by applying the “minority rule,” i.e., “prorat[ing] the loss equally up to the limits of the lower policy, with any remaining portion of the loss being paid from the larger policy up to its limits.” Trial Court Opinion at 6. The trial court chose this method after concluding that there was no controlling Pennsylvania law on the subject. The result in this case, where the total loss of $21,679.78 is less than the limits of either policy, was to require each insurer to contribute an equal amount.

In its first issue, State Farm maintains that the trial court abused its discretion in failing to apply the “majority rule” or “policy limits” method of proration, i.e., “prorat[ing] ... coverage according to the ratio of the coverages provided by each [policy] for the same loss to the total coverage provided by all policies.... ” Brief for Cross-Appellant at 9. According to State Farm, the policy limits method has been the rule in Pennsylvania for more than one hundred years.

In support of its argument, State Farm cites, inter alia, this Court’s opinion in Fireman’s Fund Insurance Company v. Nationwide Mutual Insurance Company, 317 Pa.Super. 497, 464 A.2d 431 (1983). In that case, the claimant, riding as a passenger, was seriously injured in a one-vehicle accident. The claimant did not own an automobile, and he was not a named insured on any policy. He did, however, reside with two persons who were named insureds: his father, on a policy covering two vehicles, issued by Fireman’s; and his brother, on a policy covering one vehicle, issued by Nationwide. The claimant asserted a claim against Fireman’s for basic loss benefits under § 204(b) of the No-Fault Act, 40 P.S. § 1009.204(b) (repealed). Fireman’s paid the claim and then sought contribution pro rata from Nationwide for one-half of the total claim. Nationwide paid only one-third of the total amount, asserting that apportionment should be based on the number of vehicles and the difference in premiums. The trial court agreed and entered summary judgment for Nationwide.

On appeal, this Court concluded, for reasons not pertinent here, that neither the “premium method” nor the “involved motor vehicles” method of proration should be applied. The Court set forth the following analysis:

Resolution of this case depends ... upon the language of the policies in question and an examination of the law of insurance prior to the enactment of the No-Fault Act and the effect, if any, passage of that Act may have had upon that law. In Vrabel v. Seholler, 369 Pa. 235, 242-243, 85 A.2d 858, 861 (1952) (Vrabel I), appeal after remand, 372 Pa. 578, 94 A.2d 748 (1953) (Vrabel II), the Pennsylvania Supreme Court stated:
In the absence of contrary modifying provisions in a statute, the liability of an insurer and the extent of the loss under a policy of automobile liability insurance must be determined, measured, and limited by the terms of the contract. (Emphasis supplied.)
Where the insurance policies did not themselves expressly specify the method of proration, the Supreme Court held that liability was to be apportioned under the so-called majority rule or the “policy limits” method of proration.

Id. 317 Pa.Super. at 510, 464 A.2d at 438 (additional citations omitted). In other words, the court is instructed to look first at the language of the applicable statute; absent any controlling statutory provisions, the court is to prorate liability as specified in the policies; absent any controlling policy provisions, the court is to apply the majority rule or policy limits method of proration.

Accordingly, this Court first examined the language and legislative history of the No-Fault Act and determined that the Act was not a “modifying statute,” i.e., in enacting the Act, the legislature had not intended to change the law with regard to the proration of liability. Because essential portions of the insurance policies were not in the record, this Court was unable to complete the next step of the analysis, i.e., prorating liability as specified in the policies. The Court therefore reversed the order granting summary judgment in favor of Nationwide and remanded for further proceedings, noting the following:

If there is a conflict between the language of the policies, that conflict should first be resolved in the trial court by reference to the language contained in the policies. If the clauses are irreconcilable, they should be disregarded as mutually repugnant and the common law rule of Vrabel I and Vrabel II applied, i.e.[,] the policy-limits ratio. If that common law rule is to be altered, it should be done only after careful consideration and reflection, with due regard for the uniformity, coherence, simplicity and certainty of the No-Fault system of insurance desired by the legislature.

Id. 317 Pa.Super. at 512, 464 A.2d at 439.

It is beyond dispute that Fireman’s Fund v. Nationunde is not directly on point. In the present case it is the MVFRL, not the No-Fault Act, which governs; and the policy provisions at issue concern liability insurance, not basic loss, first-party benefits. Nevertheless, when presented with an issue for which there is no clear precedent, our role as an intermediate appellate court is to resolve the issue as we predict our Supreme Court would do. Our opinion in Fireman’s Fund v. Nationwide, relying as it does on Supreme Court case law, offers some guidance as to how the Supreme Court would view the matter. If, as the trial court thought, the “minority view” method of proration is the better of the two, it is for the Supreme Court to say so.

Having examined the MVFRL, we conclude that it is not a “modifying statute” with regard to the meaning of “pro rata.” We note also that the State Farm policy provides for proration of coverage by the policy limits method. State Farm asserts that the Universal policy does not address the question of proration and that, in any event, it does not matter whether the Universal policy has a conflicting provision or none at all: in either case, pursuant to Fireman’s Fund v. Nationwide, as quoted above, the policy limits method should have been applied. We agree.

Having reached this conclusion, we decline to address State Farm’s remaining issue, namely, whether the defense costs should be allocated in accordance with the ratio by which indemnification is prorated. Instead, we vacate the order granting partial summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Order vacated. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

POPOVICH, J., concurs in the result.