author: DEL SOLE, Judge: OLSZEWSKI, Judge,

text:
    532 A.2d 453
    In re Petition of Christine McLAUGHLIN for Return of Property—One Ford Bronco. Appeal of Christine McLAUGHLIN.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed Oct. 15, 1987.

      John P. Yatsko, Norristown, for appellant.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

We consider an appeal from an Order denying Appellant’s petitions for return of property. The property in question is a 1978 Ford Bronco which was seized by the Commonwealth incident to the arrest of one Paul Massad for possession of marijuana.

Appellant grounds this appeal on two counts of error allegedly committed by the hearing court. First, Appellant posits that the evidence presented during a hearing on the petitions was insufficient to substantiate the forfeiture. Second, it is argued that the hearing judge erred in failing to uphold Emil Massad’s bailor’s claim to the forfeited vehicle.

In the instant case, the Bronco was seized by the Commonwealth pursuant to the Forfeiture and Condemnation of Vehicles Act, 35 P.S. §§ 831.1.—831.5. Section 831.1 of the Act provides:

Any wagon, buggy, motor vehicle, water or air craft or other vehicle or conveyance in which is stored, contained or transported, any narcotics or drugs, the possession or transportation of which is in violation of any law of this Commonwealth, shall be forfeited to the Commonwealth____

(Emphasis supplied).

Forfeiture proceedings are civil in form, yet quasi-criminal in character. During such proceedings, it is the Commonwealth’s burden to prove by a preponderance of the evidence that the vehicle was used in the proscribed manner. The vehicle’s connection with the crime need not be proven beyond a reasonable doubt. Petition of Maglisco, 341 Pa.Super. 525, 531, 491 A.2d 1381, 1384 (1985).

The forfeiture of the Ford Bronco stems from an investigation of Paul Massad by the Montgomery County Narcotics Enforcement Team. Detective Raymond Kuter of that unit negotiated with Mr. Massad for the purchase of an unknown quantity of marijuana, (N.T., 15). On the evening of the arrest, Detective Kuter had made arrangements with Mr. Massad to meet at the Casa Maria restaurant, located in King of Prussia, to effectuate the transaction. (N.T., 16). The restaurant’s parking lot was under surveillance by members of the narcotics unit who observed Mr. Massad’s arrival in the Ford Bronco. At the time, Mr. Massad approached a black Volks wagon Rabbit, which was already parked in the lot, and conversed with one of two unidentified males of that vehicle who later joined Mr. Massad in the Bronco. Eventually, the unidentified male left the Bronco, climbed back into the Volkswagon, and exited the parking lot. (N.T., 17).

Detective Kuter later entered the Bronco and was shown a brown paper bag containing one half pound of marijuana. When asked where he viewed the marijuana, the witness related:

[w]e were sitting in the front seat. He was in the driver’s seat of his Bronco. I was in the passenger seat. And the bag was sitting between the two seats.

(N.T., 22). After viewing the marijuana, Detective Kuter went to his car and radioed for other detectives to move in and arrest Mr. Massad. The Bronco was then driven to the Upper Merion Police Department where it was impounded. (N.T., 23).

Throughout its opinion filed in accordance with Pa.R. App.P. 1925, the hearing court stated that the Commonwealth clearly established that the Ford Bronco was “used by Massad to store, contain or transport illegal drugs and was properly seized by the Commonwealth.” (Opinion, 10/29/86, 3). However, the hearing judge did not explicitly state which of the three actions were taken by Mr. Massad. For this reason, we deem it necessary to remand this case to the hearing judge for a hearing on the exact use of the Ford Bronco in conjunction with the attempted sale of marijuana. The hearing court is directed then to make specific findings with respect to the connection between the vehicle and Mr. Massad’s failed caper.

We take this opportunity to note that the hearing court opined that the Ford Bronco was forfeited since Mr. Massad used it as a means of storing, containing, or transporting the controlled substance. The statutory source of this conclusion is § 831.1 of the Act. After reviewing the Act in its entirety, we caution the hearing court that it improperly relied upon § 831.1 as grounds for upholding the forfeiture. Rather, § 831.1 merely sets out the reasonable bases for the confiscation of the vehicle by the Commonwealth, not whether a subsequent adjudgment of forfeiture is warranted. Section 831.3 of the Act provides the circumstances under which a vehicle may be found to have been properly forfeited to the Commonwealth:

If upon hearing it appears that any such vehicle has been used to store, possess or transport any narcotic or drug, the transportation or possession of which is unlawful, such vehicle shall be adjudged forfeited and condemned and shall be disposed of as hereinafter provided.

35 P.S. § 831.3 (Emphasis supplied).

Arguably, the difference between the “stored, contained or transported” language in § 831.1 and the “store, possess or transport” verbiage of § 831.3 is neglible. Nonetheless, our legislature in devising the Act explicitly stated that its purpose was to provide “for the forfeiture and condemnation of vehicle used to store, possess or transport narcotics or drugs, the possession or transportation of which is in violation of law.” See Title of Act.

Thus, the hearing judge must decide whether or not the Ford Bronco was utilized to: store the marijuana for some future use, possess the controlled substance, or transport the marijuana. Contrary to Appellant’s interpretation of the Act, a vehicle may be adjudged forfeited by a finding that only one of these circumstances occurred.

Next, Appellant complains that a Petition by Bailor for Return of Property filed by Emil Massad should not have been dismissed by the hearing judge. Emil Massad was a party before the hearing court; however, he neither filed an appeal nor joined in Appellant’s appeal. In Goodrich v. Luzerne Apparel Manufacturing Corp., 356 Pa.Super. 148, 514 A.2d 188 (1986), we opined that the issues raised in the brief of defendants offered in support of an appeal filed by other defendants would not be considered insofar as they did not appeal separately or join in the other defendants’ appeal. Id., 356 Pa.Superior Ct. at 514 A.2d at 188, n. 1. See Pa.R.App.P. 501, 512, 902, 903. Accordingly, we shall not consider this issue.

Order affirmed in part. Case remanded for proceedings consisent with this Opinion. Jurisdiction of this court retained. Jurisdiction of this panel relinquished.

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

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with the majority that the petition of Emil Massad should not be reviewed as he neither filed an appeal nor joined in the appeal of Ms. McLaughlin. I take issue, however, with the majority’s decision to remand the case for an unnecessary determination that the Ford Bronco was used to “store, possess or transport” the marijuana.

As the majority correctly notes, the statutory authority for the confiscation and, subsequently, the forfeiture of vehicles provides as follows:

§ 831.1. Forfeiture for storage or transportation of narcotics or drugs

Any wagon, buggy, motor vehicle, water or air craft or other vehicle or conveyance in which is stored, contained or transported any narcotics or drugs, the possession or transportation of which is in violation of any law of this Commonwealth, shall be forfeited to the Commonwealth subject to the provisions hereafter set forth[.]

35 Pa.S.A. § 831.1 (Purdon’s Supp.1987) (emphasis added). Upon taking possession of a vehicle, the Commonwealth is obliged to deliver it to the district attorney, subject, however, to be returned to the owner upon execution of a bond. 35 Pa.C.S.A. § 831.2. Thereafter, the forfeiture procedure is governed by § 831.3 which provides:

§ 831.3. Vehicle adjudged forfeited after hearing

If upon hearing it appears that any such vehicle has been used to store, possess or transport any narcotic or drug, the transportation or possession of which is unlawful, such vehicle shall be adjudged forfeited and condemned and shall be disposed of as hereinafter provided.

35 Pa.S.A. § 831.3 (emphasis added). As this section makes clear, a vehicle may not be forfeited unless the evidence shows that it had been used to store, possess or transport any drug.

In rendering a decision that the Ford Bronco was forfeited to the Commonwealth, the hearing court stated:

It is further this Court’s opinion that the marijuana was in fact stored in the vehicle. The vehicle was, therefore, used for the purpose of either storing—and also been used in transporting is irrelevant [sic] as to whether he brought the marijuana to the scene of the Casa Maria or not because he did in fact have it there.

(N.T. 7/3/86 at 38) (emphasis added). A review of the hearing testimony shows that the court’s decision was well-founded.

The arrest of Paul Massad on the charge of possession of marijuana culminated a long-term undercover investigation by the members of the Narcotics Enforcement Team of the Montgomery County District Attorney’s Office. A member of that team, Detective Raymond Kuter, testified that for several months he had purchased marijuana from Paul Massad. During a telephone conversation on March 12, 1986, Massad advised the detective that the source of the marijuana was in Willow Grove, Pennsylvania, and that Massad had to drive there to complete a transaction. Detective Kuter agreed to meet Massad later that same evening at a restaurant in King of Prussia, Pennsylvania, in order to purchase some marijuana.

Detective Sherman Nowlin, also of the Narcotics Enforcement Team, testified that he and three other units were assigned to surveil Massad. After the telephone conversation between Detective Kuter and Massad, Detective Nowlin and the other units followed Massad from his home in King of Prussia to a residence in Willow Grove. The officers also followed Massad to the restaurant in King of Prussia where he was to meet with Detective Kuter. Detective Nowlin recalled that when he and the other police units arrived at the restaurant to set up surveillance, he observed two males in a car which was parked behind the restaurant. Massad arrived alone in the Ford Bronco, drove up to the unidentified car, and talked to one of the males. The car then left the parking lot. Thereafter, Detective Kuter arrived. Detective Kuter explained that he joined Massad in the front seat of the Ford Bronco. At that time, Massad showed the detective a paper bag containing marijuana. The marijuana was located between the driver’s seat and the passenger’s seat of the Bronco. Massad was then arrested and the Ford Bronco impounded.

Based upon this testimony of the officers, I am satisfied that the evidence supports the hearing court’s finding that the marijuana was stored in the Ford Bronco. Thus, the vehicle was properly forfeited to the Commonwealth.

I agree with the majority that the hearing court improperly relied upon § 831.1 in rendering its decision. (N.T. 7/30/86 at 39; Opinion pursuant to Pa.R.App.P. 1925(c) 10/29/86 at 3). As noted above, § 831.3, not § 831.1, sets forth the circumstances under which an order of forfeiture may be entered. I believe, however, that this error is of no consequence. Although § 831.1 authorizes the confiscation of vehicles and § 831.3 determines when forfeiture is proper, both sections are satisfied here since the hearing court held that the marijuana was “stored” in the Ford Bronco. Compare 35 Pa.C.S.A. § 831.1 with 35 Pa.S.A. § 831.3.

I believe the decision to remand the matter is unnecessary and, consequently, is an unproductive use of judicial resources. I would therefore affirm the order.

      . It was stipulated that the bag contained marijuana. (N.T. 7/30/86 at 31-32).

      . In a Rule 1925(c) “Opinion,” the court merely explains the reasons for its prior order. See Commonwealth v. Crowley, 259 Pa.Super. 204, 209, 393 A.2d 789, 792-793 (1978); see generally Pines, Pennsylvania Appellate Practice: The Appellate Journey (From Filing the Appeal to Briefing), 91 Dick.L.Rev. 377, 421 (1986).

      . According to the docket sheet, the Opinion pursuant to Pa.R.App.R. 1925(c) was filed on October 29, 1986; however, the transcript of notes of testimony was filed several days later, on November 3, 1986. I believe that the court’s ruling of July 30, 1986 controls, not the explanation given in the Rule 1925(c) Opinion (which was filed prior to the time the transcript was completed).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    532 A.2d 456
    Michael F. LARTHEY, a Minor, by His Parents and Natural Guardians, Francis and Katherine LARTHEY, in Their Own Right, Appellants v. Brinley C. BLAND, M.D. and the Germantown Dispensary and Hospital.
    Superior Court of Pennsylvania.
    Argued June 23, 1987.
    Filed Oct. 16, 1987.

      Howard J. Levin, Philadelphia, for appellants.
    Chárles B. Burr, II, Philadelphia, for appellees.
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Following a writ of summons on January 8, 1982, plaintiffs/appellants filed a complaint in trespass on April 16, 1982 alleging that defendant/appellee, an obstetrician, was negligent in his handling of the birth and delivery of the minor appellant, Michael Larthey, on July 14, 1979. Appellee filed an answer and new matter denying appellants’ factual averments and legal conclusions and specifically raising as a defense that appellants’ action was barred by the applicable two-year statute of limitations, 42 Pa.C.S. § 5524. Discovery proceeded for approximately four years. Immediately prior to trial, appellee filed a motion for partial summary judgment alleging the action violated the statute of limitations. In addition to their answer in opposition to appellee’s motion, appellants filed a cross-motion for summary judgment arguing that the tolling statute for minors, 42 Pa.C.S. § 5533(b), applies to appellants’ case and tolled the statute of limitations.

By Order dated April 27, 1986, the trial court denied both parties’ motions for summary judgment. However, on April 28, 1986, after selection of the jury had been completed, an in-chambers meeting occurred in which the Honorable Abraham J. Gafni reopened the issue of the statute of limitations operation and, after a discussion as to contradictions between appellants’ deposition testimony versus their affidavits in opposition to appellee’s motion for partial summary judgment, directed both sides to file supplemental briefs on the matter. Subsequently, on August 13, 1986, Judge Gafni amended his earlier Order and granted summary judgment in appellee’s favor and denied appellants’ cross-motion for summary judgment. Appellants timely appeal that judgment.

As we stated in Morgan v. Johns-Manville Corporation, 354 Pa.Super. 58, 61, 511 A.2d 184, 186 (1986):

Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa.Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa.Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa.Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa.Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

See Chandler v. Johns-Manville Corporation, 352 Pa.Super. 326, 507 A.2d 1253 (1986). With, these rules in mind, we review appellants’ claim.

On July 14, 1979, appellant, Katherine Larthey, gave birth to her second child, Michael, at Germantown Hospital and Dispensary in Philadelphia. Appellee, Dr. Brinley C. Bland, was the obstetrician who provided the prenatal care to Mrs. Larthey and who delivered the child. Complications arose during the course of the delivery when the minor appellant’s shoulders became impacted in the birth canal. This resulted in a brachial plexus injury which was diagnosed as Erb’s Palsy. At issue is the applicability of what is known as the “discovery rule” to the running of the two-year statute of limitations, 42 Pa.C.S. § 5524.

As a general rule, the statute of limitations begins to run in a tort case when the cause of action accrues, meaning the date the injury is sustained. “The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Once the statutory period expires, a party may only bring suit if he can establish that an exception to the general rule applies which acts to toll the statute of limitations. As the Supreme Court explained in Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983):

The ‘discovery rule’ is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause---- The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury. A court presented with an assertion of applicability of the ‘discovery rule’ must before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.
We hold, therefore, that the ‘discovery rule’ exception arises from the inability, despite the exercise of diligence, to determine the injury or its cause, not upon a retrospective view of whether the facts were actually ascertained within the period____ (Emphasis in original).

See Pastierik v. Duquesne Light Company, 514 Pa. 517, 526 A.2d 323 (1987). “Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-136, 471 A.2d 493, 500 (1984) (citations omitted).

Initially in Anthony v. Koppers Company, Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), a panel of this Court adopted a formulation of the “discovery rule” articulated by the Honorable Harry A. Takiff of the Court of Common Pleas of Philadelphia County in an asbestos case titled Volpe v. Johns-Manville Corporation, 4 P.C.R. 290 (1980), affd, 323 Pa.Super. 130, 470 A.2d 164 (1983). Quoting Judge Takiff’s statement of the formula, the Anthony court stated:

Ayers’ [supra] progeny have struggled primarily with the question of the reasonableness of plaintiffs conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury, (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct. (Emphasis in original).

Anthony, supra 284 Pa.Super. at 96, 425 A.2d at 436 (quoting Volpe, 4 P.C.R. at-). See DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983) (discussing the history of the “discovery rule” in Pennsylvania).

However, in the en banc decision of Cathcart, supra, also an asbestos case, we simplified the “Volpe test,” explaining:

Although the Volpe test has a nice “ring” to it, it unnecessarily complicates the question of when the statute begins to run. For instance, what does “operative” in “operative cause” mean, and can it be possible for a plaintiff to know the “operative cause” of his injury yet not know the relationship between the “operative conduct” and the injury? The discovery rule has been stated in an understandable manner by our Supreme Court, and we see no reason to complicate the law by adopting a modified version of the rule for cases involving diseases contracted from exposure to hazardous substances. We find that the statute of limitations begins to run in “creeping disease” cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem. (Footnote omitted).

Cathcart, supra 324 Pa.Super. at 135-37, 471 A.2d at 500. Because Cathcart is later in time than both Anthony and our general affirmance of Judge Takiff s “discovery” formula in Volpe v. Johns-Manville Corporation, 323 Pa.Super. 130, 470 A.2d 164 (1983), we find it to be controlling. Cathcart was filed one month after Volpe. As we discussed in Wheeler v. Johns-Manville Corporation, 342 Pa.Super. 473, 477, 493 A.2d 120, 122 (1985), the close proximity of these two conflicting decisions has created some disagreement as to which decision is controlling. See Berardi v. Johns-Manville Corporation, 334 Pa.Super. 36, 482 A.2d 1067 (1984). We agree with Wheeler that Cathcart should be followed because it is the most recent holding of the court en banc; Berardi, being only a panel decision, cannot overrule the court en banc. Accord Lucera v. Johns-Manville Corporation, 354 Pa.Super. 520, 512 A.2d 661 (1986), and Chandler v. Johns-Manville Corporation, supra (both following Wheeler).

The two-part Cathcart test has become this Court’s accepted method of applying the “discovery rule” exception in asbestosis and other “creeping disease” cases. Although prior to Cathcart the three-part Volpe test was commonly applied in medical malpractice cases, since Cathcart, the simplified two-part test was espoused in the medical malpractice case of Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986). We believe Groover was correct in its recommendation that Cathcart be applied in all “discovery rule” cases. But cf. Held v. Neft, 352 Pa.Super. 195, 507 A.2d 839 (1986) (a medical malpractice case applying the Volpe test without reference or discussion of Cathcart). Cathcart's inquiry into whether the injured knew or should have known he was injured and that his injury was caused by another is consistent with the Supreme Court’s characterization of the “discovery rule” in Pocono International Raceway as arising “from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.” Pocono International Raceway, supra, 503 Pa. at 85, 468 A.2d at 471 (emphasis omitted).

Upon reviewing the record in a light most favorable to the appellants, we find as a matter of law that by August, 1979 appellants knew or reasonably should have known (1) that the minor appellant had been injured and (2) that his injury had been caused by another party’s conduct.

The trial court concluded that both the sworn deposition testimony of the Lartheys and the representation of appellants’ counsel on the record indicate there is no factual dispute as to the time when the Lartheys knew the nature of their son’s injuries and that those injuries were caused by problems during the delivery. We agree. These admissions of record fix the time of the requisite knowledge at no later than August, 1979.

As stated earlier, during the delivery of Michael, on July 14, 1979, his shoulders became impacted in the birth canal. Mr. Larthey admitted that Dr. Bland informed him approximately twenty minutes after the delivery that complications had arisen during the delivery and there was a possibility that Michael’s clavical may have been broken when he rotated the child (N.D. 1/30/84, p. 13). Mrs. Larthey admitted that when she got back to her room after the birth, her husband had told her their son had limited motion in his right arm and hand (N.D. 4/18/84, p. 23). Later that day, after x-rays had been taken of Michael, Dr. Cady, a pediatrician who treated Michael, informed both Mr. and Mrs. Larthey that Michael had Erb’s Palsy and that his prognosis for his right arm was not good (N.D. 1/30/84, p. 24). Again, Mrs. Larthey admitted that she knew of her son’s Erb’s Palsy and shoulder impactment prior to her discharge from Germantown Hospital (N.D. 4/18/83, p. 40 and 1/30/84, p. 41).

Mrs. Larthey testified during depositions that when she spoke to Dr. Cady after the delivery of Michael, he did not tell her whether the Erb’s Palsy came from the delivery of Michael or not, nor did she have any understanding when she spoke to Dr. Cady what the cause of the Erb’s Palsy was, however, her own belief at that time was that the Erb’s Palsy had come from the delivery:

BY MR. BLACK [Representing former co-defendant Germantown Hospital]:
Q. When Doctor Cady told you about the erbs palsy [sic], did you discuss—Could you tell us whether you discussed with him whether the erbs palsy [sic] came from the delivery of Michael?
A. No.
Q. Did you have an understanding when you spoke with Doctor Cady what the cause of the erbs palsy [sic] was?
A. No.
Q. Did you have any thought on your own what the erbs palsy [sic] had come from at that time?
A. From the delivery.

(N.D. 1/30/84, pp. 28-29.)

On August 22, 1979, approximately one month after Michael’s discharge from Germantown Hospital, the Lartheys had their son examined by Dr. Warren Grover, a pediatric neurologist at St. Christopher’s Hospital for Children, after Michael experienced a seizure problem. At that time, Dr. Grover told Mrs. Larthey that Michael had a brachial plexus injury and that he was suffering from Erb’s Palsy (N.D. 4/18/83, p. 24), but more importantly, Mrs. Larthey admits Dr. Grover told her that her son’s seizure problem was due to birth trauma:

[BY MR. BLACK:]
Q. Has any doctor ever told you or suggested to you that the seizure episode that Michael underwent had anything to do with his birth and delivery?
A. Doctor Grover had said that seizure probably was due to the trauma of the birth.
Q. And, do you know when he told you that? Doctor Grover told you that?
A.—August of '79, I think, when he had his seizure.

(N.D. 1/30/84, p. 29.) Likewise, Mr. Larthey also recalled Dr. Grover’s opinion on the seizure:

[BY MR. BLACK:]
Q. Michael’s had one seizure; is that correct?
A. Yes, uh-huh.
Q. And, has any doctor ever told you what in his or her opinion was the cause of that seizure?
A. Dr. Grover.
Q. What did he tell you?
A. He had said that it was possible that the seizure' might have been brought on by the difficult delivery.
Q. And when did Dr. Grover tell you that?
A. I believe it was in ’79.

(N.D. 1/30/84, pp. 18-19.)

It is clear from the Lartheys’ deposition testimony alone that they knew of Michael’s injury if not shortly after birth then by the end of August, 1979. It is also clear that by that time they knew or reasonably should have known that Michael’s injury was caused by the delivery administered by appellee, fulfilling the two-part test in Cathcart. Thus, based on the facts, the “discovery rule” exception to the statute of limitations is inapplicable in this case because appellants cannot claim an inability, despite the exercise of due diligence, to determine the injury or its cause—they have admitted such knowledge. See Pocono International Raceway, supra. Also, such a finding renders meritless appellants’ claims of a tolling of the statute due to alleged concealment on appellee’s part.

In addition to the deposition testimony, the trial court noted a letter sent in November, 1979 by Mrs. Larthey refusing to pay her bill to appellee, which reads as follows:

Dear Dr. Bland,
I received your bill for $167.00 and feel that in good conscience I can not pay it. I was very upset with my delivery problem.
During delivery Michael’s right arm was injured to the entent [sic] that he could not lift it. My husband and I were so concerned that we took Michael to Dr. Grover a Pediatric Neurologist at St. Christophers. Michael underwent extensive testing and therapy for his arm.
Michael is now on phena barbitol, and will be for at least a couple years plus he must go to St [sic] Christophers monthly for therapy for his arm and that could be for quite some time.
Enclosed are photo-copies of the bills that we received from St. Christophers.

We agree with the trial judge that the letter demonstrates Mrs. Larthey knew or believed her son’s injuries were related to appellee’s performance during the delivery and are unpersuaded by Mrs. Larthey’s affidavit’s statement that her real motive for not paying the doctor’s bill was her financial inability to do so.

We find appellants’ reliance on our Opinion in Petri, supra, misplaced. Petri was a medical malpractice action in which we analyzed whether the plaintiff acted diligently in seeking the cause of her new born son’s retardation where her physicians had informed her that “these things happen” and that “it was a one time thing that probably wouldn’t happen again” and where she thought the condition was a birth defect; we concluded that the plaintiff was not unreasonable under the circumstances in failing to seek the cause of the child’s problem. See Burnside, supra. Here, the question of diligence was not at issue since the appellants knew or reasonably should have known not only of Michael’s injuries but also that the delivery, performed by appellee, was the cause of them.

Lastly, appellant would have us apply the amended provisions of the tolling statute for minors, 42 Pa.C.S. § 5583, retroactively to toll the statute of limitations with respect to the minor-plaintiff, Michael. Section 5533(b) provides:

(b) Infancy—If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced.- Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term ‘minor’ shall mean any individual who has not yet attained the age of 18.

This amended section to 42 Pa.C.S. § 5533 was not effective until thirty days after May 30, 1984. Since Michael’s cause of action accrued no later than August, 1979, the two-year statute of limitations applicable to his action ran prior to the 1984 amendment to 42 Pa.C.S. § 5533. Consequently, Michael’s cause of action, along with his parents, expired prior to the effective date of the amendment.

We find no support for appellants’ argument that section 5533 should be applied retroactively to revive a cause of action already barred by the statute of limitations. Under the Pennsylvania Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., section 1926 provides “[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” In Commonwealth v. Baysore, 349 Pa.Super. 345, 349, 503 A.2d 33, 35 (1986), we found that only “[a]n explicit use of the word ‘retroactive’ meets the requirements of a clear and manifest intent of the legislature that the act be applied retroactively.” Since amended section 5533 does not contain an explicit provision that it be applied retroactively, we will not apply it so. See Maycock v. Gravely Corporation, 352 Pa.Super. 421, 508 A.2d 330 (1986) (held that a minor injured prior to the effective date of 42 Pa.C.S. § 5533(b), who attained majority before the effective date, and whose claims are time-barred by applicable statute of limitations prior to the effective date of § 5533(b) cannot rely on that section to revive a barred claim).

Accordingly, judgment affirmed.

      . An Order was entered by Judge White on March 4, 1986 stating that summary judgment was granted and plaintiffs complaint and co-defendant Brinley C. Bland’s cross-complaint against defendant German-town Dispensary and Hospital were dismissed with prejudice.

      . We note that the principle issue discussed in our en banc decision in Volpe, supra, dealt with whether the case lay in admirality jurisdiction or not. Our decision in Volpe did not expressly adopt the three-part “Volpe test” of Judge Takiff, but merely referred to the lower court’s findings that the plaintiff therein knew of his injury, the operative cause of his injury, and the causal connection between his injury and the operative cause. The only reference to Judge Takiffs formula made by our Court in Volpe is as follows:
      Judge Takiff found that by December 1973, Mr. Volpe knew of his injury, asbestosis, the operative cause of his injury, inhalation of asbestos dust and fibers, and the causal connection between his injury and his exposure to asbestos at work____ We agree with the judge below that once Mr. Volpe knew these facts, he had the ability to investigate and pursue his claim.

        Volpe, supra, 323 Pa.Superior Ct. at 141, 470 A.2d at 170. In light of our Court’s decision in Cathcart, supra, we do not believe that our en banc decision in Volpe conclusively adopted Judge Takiff s three-part test.

      . Likewise, we believe the pre-Cathcart decision of Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982) (en banc), also applying the Volpe test in a medical malpractice case is no longer controlling in light of the more recent decision in Cathcart.

      . See e.g., Lucera, supra; Trieschock v. Owens Corning Fiberglas Company, 354 Pa.Super. 263, 511 A.2d 863 (1986); Mihalcik v. Celotex Corporation, 354 Pa.Super. 163, 511 A.2d 239 (1986); Morgan, supra; Chandler, supra; Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985); Wheeler, supra; Price v. Johns-Manville Corporation, 336 Pa.Super. 133, 485 A.2d 466 (1984); Ciafrani v. Johns-Manville Corporation, 334 Pa.Super. 1, 482 A.2d 1049 (1984).

      . See e.g., Hunsicker v. Conner, 318 Pa.Super. 418, 465 A.2d 24 (1983); DeMartino, supra; Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982); Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982); Stein, supra; Anthony, supra.

        . The two-part Cathcart test is a simplification of the three-part Volpe test and speaks more directly to the view of this Court than does Volpe which simply affirmed the test applied by Judge Takiff in that case (see note 2). In Cathcart, the en banc court refined the Volpe test to bring it into conformity with its understanding of how the discovery rule was viewed by the Supreme Court.

      . During the course of the in-chambers conference held on April 28, 1986, after communicating with appellants, their counsel reaffirmed appellants’ deposition testimony by stating that their trial testimony would be consistent with their responses in their depositions as opposed to their affidavits (N.T. 1/28/86, pp. 6-8).


author: PER CURIAM:

text:
    532 A.2d 463
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian HOFFMAN, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 17, 1987.
    Filed Oct. 13, 1987.

      Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Shelley Stark, Assistant Public Defender, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal by the Commonwealth from the pretrial court’s grant of appellee’s motion to suppress a certain recorded conversation and the transcript thereof. Finding the suppression court’s reliance upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny to be misplaced, we reverse the order of the suppression court and remand for further proceedings.

We initially note that the Commonwealth has set forth in its statement of jurisdiction that the entry of the suppression order in question substantially handicapped the prosecution, thereby properly invoking the jurisdiction of this court to entertain the appeal from an otherwise interlocutory order. In light of our Supreme Court’s holding in Commonwealth v. Dugger, 506 Pa. 537, 545-46, 486 A.2d 382, 386 (1985), we will entertain the within appeal.

The Commonwealth argues that the trial court’s suppression order was erroneous for two reasons: (1) appellee’s Sixth Amendment right to counsel was not violated by the Commonwealth’s interception of his second telephone call to the Commonwealth witness; and, (2) interrogation, as contemplated by Massiah and its progeny, did not occur in the instant case. For the following reasons, we agree with the Commonwealth on both claims.

Appellee was charged with criminal homicide. During a pretrial conference, a potential prosecution witness informed the Commonwealth that she had been at a party with the defendant and his codefendant. The victim arrived at the party with the codefendant, who secured a drink and returned to a truck with the victim. Appellee then entered the kitchen of the house where the party was held and said that they were going to “roll” and kill the victim. Appellee was also reported as saying that he was going to get a knife for that purpose. He showed the witness a knife before he left the party with his codefendant and the victim. A copy of the interview report was immediately given to defense counsel. Within two hours of disclosure of the report, appellee, through a third party, called the witness at home and asked her to change her story. Appellee suggested that if she were asked why her testimony differed from the reported statement, she should indicate that she was forced to make the initial statement by the police. Appellee also indicated that he would call again the following day between 4:00 p.m. and 5:30 p.m. to ensure her cooperation. The witness notified the police of the telephone call, and wiretap procedures were initiated through the District Attorney’s Office. Appellee telephoned the witness at 5:20 p.m. on the prearranged date and the conversation was recorded.

The Commonwealth proposed to offer the transcript and/or the tape recording through the direct testimony of the witness as evidence of consciousness of guilt. Defense counsel objected on the grounds that the witness acted as a state agent at the time of the telephone call, that appellant had been charged, arraigned and was represented by counsel, therefore raising the question as to the legality of the offer in light of Massiah and other cases. The suppression court found that the witness interrogated appellee in violation of his Sixth Amendment rights by asking appellee what he wanted her to say and granted the suppression motion.

It is clear that that the Massiah court found that the Sixth Amendment only forbids deliberate elicitation of incriminating remarks. Cf, e.g., Kuhlmann v. Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2629, 91 L.Ed.2d 364, 383 (1986); and United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115, 122 (1980). The activity which formed the basis for the suppression court’s order herein does not give rise to deliberate elicitation of incriminating information by appellee.

As enunciated in Kuhlmann v. Wilson, supra, 477 U.S. at 459, 106 S.Ct. at 2630, 91 L.Ed. at 384-385:

... the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since “the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached,” [Maine v. Moulton ] 474 U.S., [159], at [176], 106 S.Ct. at [477] at 487 [88 L.Ed.2d 481 (1985)], citing United States v. Henry, supra, [447 U.S.] at 276, 100 S.Ct., at 2189 (Powell, J., concurring), a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

In light of the Kuhlmann enunciation, we must determine whether appellee demonstrated to the suppression court that some action was taken which was deliberately designed to elicit incriminating remarks.

As we noted earlier, appellee initiated and followed up on the contact with the witness. It was only after appellee’s first telephone call that the witness contacted the authorities and informed them that appellee wanted her to change her testimony. Based upon this information, the authorities decided to record the second telephone conversation which was suggested and initiated by appellee. During the recording of the subject conversation, the certified officer, an Assistant District Attorney, did not listen to appellee’s side of the conversation. He only heard the witness’ voice. No efforts were made during that conversation to have the witness specifically elicit incriminating information; instead, the witness was instructed to avoid discussion of the trial or the pending charges against appellee. In light of the circumstances surrounding the intercepted conversation, we find that (1) the conversation did not give rise to interrogation as contemplated by Massiah and its progeny; and, (2) appellee’s Sixth Amendment right to counsel was therefore not violated by the interception.

In conclusion, we note that we find no merit in appellee’s counter-claims that (1) the appeal should be quashed because there is no statutory authorization for the appeal by the Commonwealth; (2) the Commonwealth has taken this appeal in bad faith as a trial delaying tactic; and, (3) the Commonwealth’s allegations herein are based upon findings of fact and therefore not appealable. Our initial finding that this appeal is properly before us on its merits disposes of appellee’s first counter-claim. As to his second and third, we find no evidence of bad faith on the part of the Commonwealth in exercising its legal right to appeal under these circumstances, and further find that the Commonwealth’s allegations are clearly premised upon issues of law and not findings of fact.

The order of the suppression court is reversed, and the matter is remanded for further proceedings. Jurisdiction is relinquished.


text:
    532 A.2d 465
    COMMONWEALTH of Pennsylvania, Appellant, v. Jose A. RAMOS, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 2, 1987.
    Filed Oct. 13, 1987.

      Richard A. Hernán, Jr., District Attorney, Warren, for Com., appellant.
    Thomas J. Bonavita, Assistant Public Defender, Warren, for appellee.
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

This Commonwealth appeal follows a pretrial order granting appellee’s motion to suppress. The order suppressed all statements made by appellee on June 26, 1986, to a Children and Youth Services (CYS) caseworker while he was incarcerated at the Warren County Prison. For the reasons which follow, we affirm.

On June 23,1986, Trooper Daniel Portzer, of the Pennsylvania State Police, filed a criminal complaint against appellee charging him with involuntary deviate sexual intercourse, statutory rape, and indecent assault. These charges resulted from sexual contact between appellee and a minor child.

That same day, in connection with a statewide broadcast concerning these charges, appellee was stopped by another state trooper in Clarion County. After receiving information that appellee was being held at the Clarion County jail, Trooper Portzer secured a warrant for his arrest. Upon arriving at the Clarion County jail, Trooper Portzer read both the criminal complaint and the arrest warrant to appellee. He also informed him of his Constitutional rights, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellee was then taken before a district magistrate in Clarion County, who advised appellee of his rights, of the charges against him, and of his right to bail. Because appellee was unable to post the required bail, he was returned to Warren County, where the crimes were alleged to have occurred.

After arriving in Warren County, appellee was taken directly to the office of District Magistrate Dalton E. Hunter. Again, appellee was informed of his Constitutional rights, including his right to bail, and of the charges against him. At this point, appellee executed a written “Application for Assignment of Legal Counsel.” Still unable to post the required bail, appellee was committed to the Warren County Prison. When he arrived at the prison, appellee again requested an attorney. Except for this statement and voluntarily answering required administrative questions for identification purposes, appellee refused to respond to questions.

Appellee was continuously confined to a solitary cell where he was subjected to 24 hour observation by use of a closed-circuit camera for three days. Then, on June 26, 1986, appellee was removed to an interview room within the prison. There, John Bowler, a caseworker from the local CYS, introduced himself to appellee. The caseworker explained that he was investigating a report of suspected child abuse, and that his was a civil and not a criminal investigation. Mr. Bowler failed, however, to administer Miranda warnings when he met with appellee. As a result, appellee believed, as found by the suppression court, that his conversation with Mr. Bowler would be kept confidential. Appellee then admitted to the incidents giving rise to the charges against him.

The following day, Mr. Bowler mailed written notice, required by law, to Trooper Portzer. Subsequently, Trooper Portzer received a copy of Mr. Bowler’s dictated notes of the interview as well as his final written report. These notes and reports contained the statements which appellee sought to suppress.

To better understand how the CYS interview came about, it is necessary to review the relevant portions of the Child Protective Services Law, 11 Pa.C.S.A. §§ 2201, et seq. This law requires that each “county children and youth social service agency establish a ‘child protective service’____” 11 Pa.C.S.A. § 2216(a). It also mandates certain reporting procedures. Among the persons required to report suspected child abuse to the appropriate child protective service are law enforcement officers. 11 Pa.C.S.A. § 2204(a), (c); 2206(a), (c). Upon receiving such a report, it is incumbent upon the service to commence an appropriate investigation. In conducting their investigation, the CYS “... shall, if possible, conduct an interview with ... the alleged perpetrator of the suspected child abuse, if known.” 55 Pa.Code § 3490.55(d)(3). Additionally, the Child Protective Service “shall record in writing the facts obtained as a result of the interview conducted under subsection (d) and any other interview it conducts.” 55 Pa.Code § 3409.55(e). Finally, all reports made pursuant to this law are to be made available to law enforcement officers.

The Commonwealth argues that it is improper to require a CYS worker, acting pursuant to the Child Protective Services Law, to advise a defendant of his Miranda rights before interviewing him. On the facts of this case, we disagree.

In Miranda, supra, the Supreme Court established a conclusive presumption that all confessions or admissions made during a period of custodial interrogation are, intrinsically, compelled in violation of the Fifth Amendment’s privilege against self-incrimination. Miranda v. Arizona, at 467, 865 S.Ct. at 1624. See also, Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 1300, 84 L.Ed.2d 222 (1985). The threshold requirements necessitating Miranda warnings are custodial interrogation and government involvement. There can be no question in this case that at the time of the questioning by the CYS worker, appellee was in custody; the Commonwealth concedes as much. Appellee was in the Warren County Prison, under arrest, and locked in an interview room with the CYS worker.

We turn then, to the questions of whether the questioning was interrogation within the meaning of Miranda and whether the CYS worker’s involvement amounted to government involvement. The Commonwealth urges us to conclude that the CYS worker in this case was not required to administer Miranda warnings because Mr. Bowler was not working at the direction or the behest of the police and that the statements were obtained in the course of a “good faith” civil investigation. The present case is analogous to Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983). There, a prison inmate made an inculpatory statement in response to the prison director’s question, “Are you involved in the incident that happened this morning?” The court relied on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and concluded that because such a question was clearly likely to elicit an incriminatory response, and because no Miranda warnings had been given prior to the questioning, the statement should have been suppressed. Chacho, 500 Pa. at 579-580, 459 A.2d at 315.

In Rhode Island v. Innis, supra, the Supreme Court explained that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id., at 300, 100 S.Ct. at 1689-1690. The court also noted that the underlying intent of the police was of little importance regarding the latter portion of the definition. Id., at 300-302, 100 S.Ct. at 1689-1690.

More importantly, in Chacho, the Commonwealth argued that no Miranda warnings were required because the prison director was not a police officer but a member of the internal prison staff. The court rejected the argument as being without merit by reasoning:

[T]he particular office that the official who performs the custodial interrogation represents is inconsequential because Miranda was concerned with official custodial interrogations of an accused and the use of statement obtained from an accused without an attorney in such circumstances to prove the State’s case against the accused.

Commonwealth v. Chacko, 500 Pa. at 580, n. 3, 459 A.2d at 315, n. 3, quoting, Battie v. Estelle, 655 F.2d 692, 699 (5th Cir.1981). In the instant case, the Child Protective Services Law required the CYS worker to forward his report of the case, including notes of the interview, to the police. In fulfilling its purpose of “providing protection for children from further abuse,” 11 Pa.C.S.A. § 2202, “CYS is not only a treatment agency, but is the investigating arm of the statewide system of Child Protective Services.” Commonwealth v. Arnold, 356 Pa.Super. 343, 353, 514 A.2d 890, 895 (1986). In accordance with Chacho, therefore, Miranda warnings were required.

The Commonwealth’s argument that the CYS worker was conducting a “good faith” civil investigation thereby obviating the need for Miranda warnings ignores previous decisions of the United States Supreme Court rejecting such distinctions. In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the petitioner’s conviction of tax fraud was based, in part, on statements and documents which he gave to a government agent while he was in prison serving a state sentence. The Government sought to escape application of the Miranda warnings, inter alia, because the questions asked of the petitioner were part of a routine civil tax investigation. Id. at 3-4, 88 S.Ct. at 1504. In rejecting this argument, the court noted that “[t]hese differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody.” Id. at 4, 88 S.Ct. at 1505. The court also took note of the fact that tax investigations frequently lead to criminal prosecutions. Id. We conclude, therefore, that Mathis controls the question of whether Miranda warnings are required when, in the course of a civil investigation, questions are put to a person in custody.

We note that the Commonwealth’s reliance on Commonwealth v. Arnold, supra, is misplaced. Arnold is clearly distinguishable from the facts of the instant case. In Arnold, the defendant was convicted of crimes stemming from sexual contact with a six-year-old child. On appeal, the defendant unsuccessfully contended that inculpatory statements which he made to a CYS caseworker, who subsequently reported these statements to the police pursuant to the mandatory reporting provisions of the Child Protective Services Law, should have been suppressed. We noted, however, that the defendant was not arrested until after he had voluntarily met with the CYS worker who subsequently notified the police. Id., 356 Pa.Superior Ct. at 346-347, 514 A.2d at 895. The instant case differs in that the CYS became involved in the case after appellee was in custody.

Likewise, the present case is equally distinguishable from Commonwealth v. Ziegler, 503 Pa. 555, 470 A.2d 56 (1983), Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977), and Commonwealth v. Wu, 343 Pa.Super. 108, 494 A.2d 7 (1985). In each of these cases, an incriminatory statement was made by the defendant in the course of a civil, or administrative investigation. Since each statement was made without prior Miranda warnings, the defendant in each case sought to suppress the statement at subsequent criminal proceedings. And, in each case, the court held the defendants’ Fifth Amendment rights were not violated as none of them were in custody at the time their respective statements were made.

The Commonwealth also contends that appellee’s decision to speak with Mr. Bowler was an intelligent, knowing, and voluntary waiver of his rights. What the Commonwealth ignores, however, is that appellee had invoked his right to counsel prior. to the CYS conducted interview. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), involves a factually similar situation as the instant case. In Jackson, one of the respondents was arraigned, and because he was indigent, requested counsel be appointed for him. Like Trooper Portzer in this case, the detective in charge of the respondent’s case was present at the arraignment. Counsel was promptly appointed, but before counsel received the notice of appointment, the respondent was interviewed by two police officers while he was in the county jail and confessed. Prior to this interview, the respondent had been given his Miranda warnings on three prior occasions, as well as immediately before the interview. The court opined that “the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense.” Id. at 631, 106 S.Ct. at 1408. The court then held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id.

Instantly, appellee invoked his right to counsel by completing the “Application for Assignment of Counsel” form. We note that during the proceeding at which appellee invoked his right to counsel, appellee was informed of his Constitutional rights, including the right to counsel, the right to remain silent, and the right to reasonable bail, as well as of the charges against him. Notwithstanding the fact that this proceeding was referred to by Trooper Portzer at the suppression hearing as an informal arraignment, we conclude that, since the primary purposes of arraignment were met, see, Comment, Pa.R.Crim.P. 303, appellee invoked his right to counsel while being arraigned. Following Jackson, therefore, appellee’s alleged waiver is invalid.

In light of the foregoing, we are constrained to affirm the order suppressing the statements made by appellee.

Order affirmed.

      . The Commonwealth has certified that the suppression of appellee’s statement terminates or substantially impairs its prosecution. Accordingly, the suppression order is appealable. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 3126.

      . It was stipulated by counsel at the suppression hearing that appellee was also given his Miranda warnings upon his initial apprehension in Clarion County.

      . This application was approved by the Court of Common Pleas, Warren County, on June 27, 1986. The Public Defender’s Office was appointed to represent appellee on that date, but did not receive the order until June 30, 1986. Thus, despite his request, appellee was without the assistance of counsel for at least one week.

      . The interview was arranged by the CYS worker contacting the prison staff. Prior to meeting with appellee, Mr. Bowler mailed him a notification letter which advised appellee of his right to counsel during any part of the CYS investigation as well as the availability of local legal services for indigents. Bowler knew that appellee had not received this letter before interviewing him.

      . The act provides that all reports
      ... shall be confidential and shall only be made available to: ... (4). Law enforcement officials who shall receive reports of abuse in which the initial review gives evidence that the abuse is homicide, sexual abuse or exploitation, or serious bodily injury perpetrated by persons whether related or not related to the victim, or child abuse perpetrated by persons who are not family members. Reports referred to law enforcement officials shall be on such forms provided by and according to regulations promulgated by the department.
      11 Pa.C.S.A. § 2215(a)(10).

      . Upon receipt of each report of suspected child abuse, commence within 24 hours, an appropriate investigation which shall include a determination of the risk to such child or children if they continue to remain in the existing home environment, as well as a determination of the nature, extent, and cause of any condition enumerated in such report, and, after seeing to the safety of the child or children, forthwith notify the subjects of the report in writing, of the existence of the report and their rights pursuant to this act in regard to amendment or expungement. The investigation shall be completed within 30 days.
      11 Pa.C.S.A. § 2217(4).

      . See, n. 8, supra.


author: WIEAND, Judge:

text:
    532 A.2d 469
    Jack HOLZAPFEL, Appellant, v. John Donald MAHONY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 12, 1987.
    Filed Oct. 14, 1987.

      Alden E. Bowen, Pittsburgh, for appellant.
    Barry M. Simpson, Pittsburgh, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

The procedural nightmare in this appeal came about because of a failure to distinguish between proceedings to open a judgment and a petition for a deficiency judgment. We shall attempt to place the matter in its proper procedural posture. Only then does the need for additional proceedings become clear.

John D. Mahony and his wife, now deceased, purchased a tract of real estate, with twenty rental units erected thereon, from Jack Holzapfel on June 1, 1981. As part of the consideration, Mahony executed in favor of Holzapfel a mortgage in the amount of $139,000.00 and a judgment note in double the amount of the mortgage. The principal indebtedness was to be repaid in monthly installments of $1,483.39 each. Beginning in January, 1984, Mahony defaulted in the monthly payments; and on October 9, 1985, Holzapfel confessed judgment for unpaid principal, interest, and counsel fees in the amount of $164,907.55. When he also caused a writ of execution to issue, Mahony filed a petition to stay the sale. He alleged that the parties had been negotiating and had agreed that Mahony would reconvey the premises to Holzapfel and pay Holzapfel the additional sum of $5,000.00 in settlement of all claims. In response, the trial court stayed the sale and sua sponte issued a rule to show cause why the judgment should not be opened. Holzapfel filed an answer to Mahony’s petition in which he denied that a settlement had been reached and requested that the stay order be removed. The court thereafter lifted its stay order, allowed the sheriffs sale to proceed, and directed that issues pertaining to a deficiency judgment await determination of the rule to show cause why judgment should not be opened. On January 6, 1986, the sheriff sold the real estate to Holzapfel.

The parties then took depositions and presented arguments to assist the court in determining whether the judgment should be opened. The trial court found that there had been an agreement as alleged by Mahony and not only opened the confessed judgment but entered judgment in favor of Holzapfel for only five thousand ($5,000.00) dollars. Holzapfel appealed from this judgment.

In fact, the rule to show cause why the judgment should not be opened was moot. The judgment had been enforced by a writ of execution, and the real estate had been sold to Holzapfel. No challenges to the validity of the sale had been made. That sale, therefore, was no longer an issue, and the judgment underlying the writ of execution could not properly be questioned or opened by the trial court. Rather, at this stage of the proceedings, the issue was the amount which Holzapfel could recover from Mahony. This could be ascertained only in deficiency judgment proceedings. See: 42 Pa.C.S. § 8103. The existence of an agreement that Holzapfel should be paid only an additional five thousand ($5,000.00) dollars could also have been ascertained in such proceedings.

Moreover, even if the confessed judgment could have been properly opened by the trial court, we would be constrained to reverse the order entering final judgment on the underlying claim. Mahony’s alleged defense to the judgment was that there had been a novation. He contended that the parties had mutually agreed to a new contract which extinguished the obligations which had formed the basis for the judgment. Holzapfel, of course, denied that there had been any such agreement and alleged that he had not surrendered his right to proceed via confessed judgment, execution, and deficiency judgment to recover moneys due him according to the terms of Mahony’s note.

In Lyman Felheim Co. v. Walker, 128 Pa.Super. 1, 193 A. 69 (1937) plaintiff had confessed judgment against defendant pursuant to the terms of a written contract for the purchase of fifteen refrigerators. Defendant filed a petition to strike off and open the judgment, alleging that a binding contract had not been entered. After depositions had been taken, the trial court entered an order opening the judgment. In addition, the court decided that there had been no contract. Therefore, it ordered that the judgment be stricken. On appeal, this Court reversed that part of the order which had vacated the judgment, holding that it had been error for the trial court to decide finally the validity of the judgment without giving the parties an opportunity to prove their allegations at trial. The Court said: “Where the judgment is regular on its face and extraneous facts arising from the depositions are necessary to let the defendant into a defense, the [trial court] should not strike off or vacate the judgment but should open the judgment and then frame an issue to be tried in regular order on the trial list before a jury.” Id., 128 Pa.Superior Ct. at 7, 193 A. at 72.

The same result was achieved more recently in Philadelphia Bond & Mortgage Co. v. Highland Crest Homes, Inc., 221 Pa.Super. 89, 288 A.2d 916 (1972). There, plaintiff had confessed judgment in the amount of $15,000.00 against defendant on a note. Defendant filed a petition to open the judgment, alleging that she had been told by plaintiff when she signed the note that she was signing only as surety and would not have to pay the principal unless plaintiff could not collect from the maker. Plaintiff filed an answer denying that such a statement had been made and also denying that the maker had sufficient assets to enable plaintiff to collect the $15,000.00. The trial court issued an order granting a petition to open the judgment and also entered final judgment in favor of the defendant. This Court held:

Although we find that [defendant] has stated a proper defense, we cannot approve of the lower court’s entering judgment in her favor. By its answer the [plaintiff] put at least two facts at issue, which can be resolved only at a trial on the merits. First, it [denied having told defendant that she would be merely a surety on the note]. Secondly, it denied ... that [the maker] had sufficient assets to make it worthwhile to try to collect the $15,000 from it prior to proceeding against [defendant. Plaintiff], by placing this fact at issue, is entitled to prove the matter at trial.

Id., 221 Pa.Superior Ct. at 93-94, 288 A.2d at 918. See also: Plympton Cabinet Co. v. Rosenberg, 96 Pa.Super. 330, 334-335 (1929).

In the instant case, Mahony’s petition alleged that the parties had reached an agreement whereby Holzapfel would accept a reconveyance of the property and the sum of $5,000.00 in lieu of the obligations imposed by the note and mortgage. Holzapfel, however, denied that such an agreement had been reached and contended that he was entitled to pursue proceedings to obtain a deficiency judgment. It seems clear, therefore, that an issue of fact was raised which required trial and a factual determination.

Mahony argues that both parties waived their right to trial by requesting the court to render a final decision on the underlying dispute based solely on the depositions. However, Holzapfel denies such a waiver, and our review of the record fails to disclose any agreement to forego the right to trial. Although both parties submitted proposed findings of fact and conclusions of law to the trial court, there is nothing therein to suggest that Holzapfel was waiving his right to have a trial on the ultimate issue of whether a new agreement had been reached. We conclude, therefore, that the trial court acted prematurely when it rendered final judgment in defendant’s favor.

In summary, therefore, it is apparent that appellee was not entitled to have the judgment opened. Execution on a valid judgment had been issued, and the real estate subject to the lien thereof had been sold to the judgment creditor. The amount of money which the creditor is still entitled to recover from the judgment debtor can only be determined in deficiency judgment proceedings.

The order opening the confessed judgment and entering judgment in favor of Holzapfel in the amount of five thousand ($5,000.00) dollars is reversed, and the confessed judgment in the amount of $164,907.55 is reinstated. The action is remanded for the institution of deficiency judgment proceedings if, in fact, appellant wishes to recover additional monies allegedly owed by the judgment debtor. Jurisdiction is not retained.

KELLY, J., concurs in the result.

      . The remaining issues argued on appeal pertain to the existence and enforceability of an oral agreement and are better deferred without opinion by this Court until further proceedings have been held.

      . As a general rule there is a six month limitation on a petition for deficiency judgment. 42 Pa.C.S. § 5522(b)(2). It would seem, however, that the period must be tolled while the parties litigate the finality of the judgment and during the period in which the judgment was opened by court order.


author: MONTEMURO, Judge:

text:
    532 A.2d 472
    Anthony A. GENTILE, Appellee, v. WEST AMERICAN INSURANCE EXCHANGE, Appellant, v. ERIE INSURANCE EXCHANGE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed Oct. 16, 1987.

      Stephen P. McCloskey, Washington, for appellant.
    Timothy P. O’Brien, Pittsburgh, for Gentile, appellee.
    Richard C. Levine, Pittsburgh, for Erie Ins., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

Appellant West American Insurance Company challenges the dismissal of its joinder complaint against appellee Erie Insurance Exchange. This appeal presents a single issue: when an employer fails to obtain worker’s compensation benefits coverage for his or her employees, and one of those employees suffers injuries in a work-related motor vehicle accident while riding in the employer’s vehicle, is payment of first party benefits pursuant to the Motor Vehicle Financial Responsibility Law the duty of the employer’s motor vehicle insurance carrier or the employee’s motor vehicle insurance carrier? Under the circumstances of this case, we find that payment of first party benefits was the responsibility of the employee’s carrier. We therefore affirm the order of the Allegheny County Court of Common Pleas in favor of appellee Erie Insurance Exchange.

Appellee Anthony A. Gentile instituted the underlying action in this case against West American. Mr. Gentile suffered injuries in an automobile accident on January 31, 1986, while in the course of his employment with Richard W. Grice Remodeling. At the time of the accident, Mr. Gentile was a passenger in an automobile owned and operated by his employer, Richard Grice. Unfortunately, Mr. Grice had failed to obtain workers’ compensation coverage for his employees even though section 305 of the Pennsylvania Workmen’s Compensation Act, 77 P.S. § 501, required him to do so. Mr. Gentile therefore applied to West American for payment of first party benefits under a policy of insurance that West American had issued to Mr. Gentile’s mother pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq. West American denied the application on the belief that payment of first party benefits in the absence of worker’s compensation was the responsibility of the employer’s first party benefits carrier, not the employee’s carrier. In support of their refusal to pay, West American cited the opinion of this court in Harleysville Ins. Co. v. Wozniak, 347 Pa.Super. 356, 500 A.2d 872 (1985).

The first party benefits carrier on Richard Grice’s automobile at the time of the accident was appellee Erie Insurance Exchange. West American attempted to join Erie as a third party defendant in the action filed by Mr. Gentile. Erie responded by demurring to West American’s joinder complaint. The trial court sustained the demurrer and dismissed Erie from the action. This appeal followed.

The trial court in this case based its decision on Section 1713 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1713. Since the repeal of the Pennsylvania No-fault Motor Vehicle Insurance Act in 1984, the Financial Responsibility Law has governed “first party benefits” coverage in motor vehicle insurance policies. Section 1713(a) establishes an “order of priority,” from which the motor vehicle accident victim can determine the appropriate source of first party benefits when more than one policy of insurance covers the accident in question. The priority of coverage under this provision descends in the following order:

(1) For a named insured, the policy on which he is the named insured.
(2) For an insured, the policy covering the insured.
(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident.

75 Pa.C.S. § 1713(a). Although Mr. Gentile was not a “named insured” under either of the two policies here at issue, the trial court correctly concluded that Mr. Gentile was an “insured” under the policy issued by West American to Mr. Gentile’s mother pursuant to the Financial Responsibility Law. Section 1702 of the Law defines “insured” as “a spouse or other relative” of a “named insured” who resides “in the household of the named insured.” 75 Pa. C.S. § 1702. None of the parties in this case dispute that Mr. Gentile resided with his mother and that the West American policy identifies Mr. Gentile’s mother as an insured by name. Because the West American policy plainly covers Mr. Gentile as an “insured,” and because Mr. Gentile does not qualify as a “named insured” on any other applicable coverage, the West American policy by default falls first in the “order of priority” established by Section 1713(a). On the other hand, Mr. Gentile does not qualify as an “insured” under the policy issued to his employer by Erie Insurance Exchange. His entitlement to first party benefits under the Erie policy rests entirely upon the claim that he occupied a motor vehicle covered by Erie at the time of the accident. The Erie policy therefore falls behind the West American policy in the ordained “order of priority.” We agree with the trial court that the General Assembly “clearly enunciated” its scheme of priorities in Section 1713 and that this scheme controls the result here. The West American policy is the appropriate source of first party benefits.

West American nevertheless insists that our decision in Harleysville Ins. Co. v. Wozniak, supra, controls the present case. We disagree. In Wozniak, we construed Section 204 of the now-repealed No-fault Act. Like Section 1713(a) of the Financial Responsibility Law, Section 204(a) established an “order of priority” among applicable sources of first party benefits. Unlike Section 1713(a), however, Section 204(a) established that the first source of benefits for an employee who suffered injuries while “driving or occupying” an employer’s motor vehicle was the No-fault policy “covering such motor vehicle.” 40 P.S. § 1009, 204(a)(1). We therefore concluded in Wozniak, under circumstances similar to those in the present case, that the employer’s No-fault carrier was the appropriate source of first party benefits for the injured employee, in the absence of worker’s compensation. We conclude otherwise here because the “order of priority” provision in the Financial Responsibility Law plainly differs from the No-fault provision upon which we based our decision in Wozniak. We cannot ignore the difference. Our reasoning in Wozniak does not support the broad proposition that, in the absence of worker’s compensation, the employer’s motor vehicle insurance carrier must always bear the responsibility for payment of first party benefits to an employee injured in the employer’s motor vehicle.

Our holding here does not allow Mr. Grice to escape the consequences of his failure to furnish worker’s compensation coverage for his employees. As we observed in Wozniak, supra, Section 305 of the Workmen’s Compensation Act, 77 P.S. § 501, enables the injured employee to pursue an action “for damages at law” against the irresponsible employer. Our holding, moreover, does not eliminate the employer’s motor vehicle insurance carrier as a source of first party benefits for an injured employee. If Mr. Gentile had not qualified as an “insured” under the West American policy, the coverage issued to Mr. Grice by Erie Insurance Exchange would have constituted the only available source of first party benefits in this case. Absent the West American policy, which preceded the Erie policy in order of priority, Mr. Gentile could have recovered first party benefits from Erie without compromising his right to assert a claim “for damages at law” against Mr. Grice. To this extent, our holding in Wozniak retains its vitality, even though it does not control under the particular circumstances.

The trial court therefore correctly concluded that Erie Insurance Exchange was not the appropriate source of first party benefits for Mr. Gentile in this case. Because the joinder complaint lacks any averments of fact that would support a finding of liability against Erie, see Eckrich v. DiNardo, 283 Pa.Super. 84, 423 A.2d 727 (1980), the court properly sustained the demurrer. In reviewing an order that sustains a demurrer, of course, we accept as true all averments of material fact in the challenged pleading together with all inferences that we can reasonably deduce from those averments. See Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983); Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986); Leach v. Hough, 352 Pa.Super. 213, 507 A.2d 848 (1986). This case is free of all factual and legal doubt. The plain language of the Financial Responsibility Law applied to the undisputed facts supports the action of the trial court.

For the above reasons, we affirm the order in which the Allegheny Court of Common Pleas dismissed appellee Erie Insurance Exchange as a third party defendant in this action.

Order affirmed.

      . Only West American and Erie filed briefs on appeal. Mr. Gentile has joined in the brief filed by Erie.

      . Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), eff. Oct. 1, 1984.

      . We recognize that our holding in Wozniak rested on sound policy as well as on statutory construction. The language of the Financial Responsibility Law, however, is plain. We cannot disregard the plain meaning of a statute "under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).


text:
    532 A.2d 475
    In the Matter of the ESTATE OF Charles MEININGER, Deceased. Appeal of Virginia E. EDWARDS, Exceptant.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Oct. 16, 1987.

      John A. Spaeder, Erie, for appellant.
    Robert J. Kelleher, Erie, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

Appellant has lodged this appeal following the dismissal of her exceptions to the final account of appellee Eller, executor of the estate of Charles Meininger, Deceased.

In 1973, Charles Meininger and his brother Richard executed reciprocal wills each leaving his property to the other and naming as residuary beneficiaries their six nephews and nieces, of whom appellant is one, as is the wife of appellee Eller. At Richard’s death in 1976, decedent renounced his position as designated executor of his brother’s will in favor of appellee. Shortly thereafter decedent requested his attorney to draft a new will, and to place appellee’s name as joint tenant on all his existing accounts, stock certificates and the like, in effect naming appellee as his sole beneficiary through the survivorship mechanism.

Charles Meininger died in April, 1982, and an account of the estate was filed in September 1983 by appellee as executor. Appellant objected to the account claiming that appellee had abused his confidential relationship with decedent in order to enrich himself. On September 11,1986, the objections were dismissed without more. Appellant then filed a motion to grant exceptions to the dismissal order. After hearing on October 9, 1986, the court orally denied the motion and this appeal followed.

We note at the outset that a question of appealability arises which we may address sua sponte. Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986).

Before this Court can address the merits of an appeal our jurisdiction to decide those claims must be established. In order to avoid piecemeal litigation, no appeal will be permitted from an interlocutory order unless specifically provided for by statute. See: Pa.R.App.P. 311, Caplan v. Keystone Weaving Mills, 431 Pa. 407, 246 A.2d 384 (1968). Otherwise, an appeal must be taken from a final order. Pa.a R.App.P. 702(a); Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983).

Elderkin v. Sedney, 354 Pa.Super. 253, 255, 511 A.2d 858, 859 (1986).

Supreme Court Orphans Court Rule 6.11 requires that before confirmation of an account may occur, and before a statement of proposed distribution may be approved, an adjudication or a decree of distribution must be filed by the court or the clerk of the court in accordance with local rules. Confirmation thus confers finality, since it is, from the vantage point of the beneficiaries and heirs, conclusive as to any division of property then before the orphans’ court. From the personal representative’s perspective, confirmation “serves to discharge him from liability as to any property he distributes in accordance with the court’s decree.” 33 Standard Pa.Practice 2d § 158.141 (1987).

However, the September 11 order from which appellant has brought this appeal merely dismissed her objections. It is neither an adjudication or a decree of distribution, and as such is an improper antecedent to confirmation of an account. Absent confirmation, and its imprimatur of finality, an appeal is premature and therefore interlocutory. 33 Standard Pa.Practice 2d § 158.190 (1987).

Accordingly, this appeal must be dismissed. Levy’s Estate, 307 Pa. 522, 161 A. 740 (1932); Brusstar’s Estate, 123 Pa.Super. 45, 186 A. 147 (1936).

Appeal dismissed.

      . We note with disapproval appellant’s violation of Pa.R.A.P. 124(a)(3), (4); 2119(a).

      . 6.11. Confirmation of Accounts. Awards
      (a) No account shall be confirmed or statement of proposed distribution approved until an adjudication or a decree of distribution is filed, in conformity with local rules, by the court or by the clerk of the court, expressly confirming the account or approving the statement of proposed distribution and specifying, or indicating by reference to the statement of proposed distribution, the names of the persons to whom the balance available for distribution is awarded and the amount or share awarded to each of such persons.

      . Pa.R.A.P. 342 also allows appeals from non final orders of distribution which have been certified to be sufficiently definite to "determine the substantial issues between the parties.”

      . The trial court chose to regard as final its oral order denying appellant’s motion. However, this order too is unappealable, since it had not been docketed as Pa.R.A.P. 301(a) requires.