author: BECK, Judge:

text:
    506 A.2d 1384
    COMMONWEALTH of Pennsylvania v. Alan Leon HELMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed March 27, 1986.

      Lawrence J. Hracho, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   BECK, Judge:

After a hearing on March 1, 1985, the Court of Common Pleas of Berks County ordered the continued commitment of appellant Alan Leon Helms to Wernersville State Hospital for one year of involuntary treatment pursuant to the Mental Health Procedures Act (“Act”), Act of July 9, 1976, P.L. 817, No. 143, as amended, 50 P.S. § 7101 et seq. Appellant now contends that the evidence presented at the hearing was insufficient to support the commitment, and that the trial court lacked jurisdiction to issue its order. We disagree, and therefore affirm the order.

On February 25, 1980, appellant attacked his next door neighbor without provocation by beating him on the head with an old rifle. The neighbor died from the injuries he suffered. The court found appellant to be a paranoid schizophrenic, deemed him incompetent to stand trial, and committed him to Farview State Hospital for treatment. After regaining his competence, appellant stood trial on charges of criminal homicide, and was acquitted on January 20, 1982 because of lack of criminal responsibility. See 50 P.S. § 7404. Again, the court found appellant to be severely mentally disabled and committed him to Farview State Hospital in accordance with Sections 7304(g)(2) and 7305 of the Act. Appellant was subsequently involuntarily recommitted on three occasions and was ultimately transferred to Wernersville State Hospital in June of 1984, where he now remains.

The most recent petition to recommit the appellant for up to one year of involuntary treatment is made pursuant to Sections 7304 and 7305 of the Act. A mental health review officer (“MHRO”) held a hearing on the petition on November 15, 1984, and recommended that the appellant be treated involuntarily for another sixty (60) days. The court then ordered and held a de novo hearing on March 1, 1985. The court subsequently entered its order committing the appellant to Wernersville for a full year. This appeal followed.

We will first address appellant’s contention that the trial court lacked subject matter jurisdiction and that its order is therefore invalid. Appellant argues that no provision of the Act allows the trial court to review sua sponte an MHRO’s recommendations. Consequently, he maintains that the court of common pleas has no authority to review an MHRO’s certification unless “a person made subject to treatment” petitions the court for such a proceeding in accordance with Section 7109(b) of the Act.

The Act squarely places responsibility for its administration in the courts. See e.g. 50 P.S. §§ 7304 and 7305. The underlying legislative policy recognizes that “[sjince an individual’s freedom of choice and liberty are at stake, it is essential that judges remain the decision-maker[s]. . . .” Myers, Involuntary Civil Commitment of the Mentally Ill: A System in Need of Change, 29 Vill.L.Rev. 367, 426 (1983-4).

While the Act provides for MHROs to assist the court, see 50 P.S. § 7109(a), such assistance in no way diminishes the authority of the court. This court has previously established that MHROs are functionaries of the court of common pleas:

[The] mental health review officer is the equivalent of a master; he may make recommendations upon which the court may act; he may issue certifications upon which the court may respond by thereafter issuing a court order, and he may serve the judicial system within each county, within limitations, as the court of that county may so designate. However, the mental health review officer is not a judge, or the equivalent of a judge, of the Court of Common Pleas.

In Re Chambers, 282 Pa.Super. 327, 331, 422 A.2d 1140, 1142 (1980) (emphasis added).

The court’s authority is underscored by the fact that an MHRO’s recommendations for extended involuntary commitment under Sections 7304 and 7305 of the Act are not final appealable orders, and cannot be implemented without an order from the court. Id., 282 Pa.Super. at 331, 422 A.2d at 1142; see also In re Bishop, 282 Pa.Super. 67, 422 A.2d 831 (1980) (per curiam). In addition, as the above-quoted passage from Chambers indicates, recommendations of MHROs do not bind the court, which may or may not act upon them in issuing its order.

Although Section 7109(b) specifically designates a “person made subject to treatment” as entitled to initiate a review, the Act as a whole, and Section 7109(a) in particular, indicate that common pleas court judges have jurisdiction to initiate as well as review legal proceedings relating to commitment:

Legal proceedings concerning extended involuntary emergency treatment under section 303(c), court-ordered involuntary treatment under 304 or 305 or transfer hearings under section 306, may be conducted by a judge of the court of common pleas or by a mental health review officer authorized by the court to conduct the proceedings.

50 P.S. § 7109(a) (emphasis added).

Section 7109(a) grants the hearing court broad authority; it places no limits on the court’s capacity to conduct “legal proceedings,” either in the first instance or upon review of the MHRO’s recommendation.

Thus, while Section 7109(b) affords a person ordered to confinement pursuant to an MHRO’s decision the opportunity to have the determination reviewed by the court, it does not subtract from the broad authority granted to the court under the Act. Consequently, we hold that the Berks County Court of Common Pleas had jurisdiction to review and refashion the MHRO’s recommendation and order the involuntary commitment of the appellant.

Appellant also claims that the trial court’s order of commitment was not supported by clear and convincing evidence. Specifically, appellant maintains that the petitioner failed to show that the appellant was a clear and present danger to others and in need of continuing involuntary treatment within the meaning of Sections 7305(a) and 7304(a)(2) of the Act. The function of this court is not to find facts, but to determine whether there is evidence in the record to justify the hearing court’s findings. Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa.Super. 66, 439 A.2d 105 (1981). We conclude that appellant’s position is unsupported by the record, and is based on a misinterpretation of the dictates of the statute.

Under the Act, in order for an individual to be involuntarily recommitted the petitioner must show by clear and convincing evidence that the individual continues to pose a “clear and present danger” of harm to himself or to others. See 50 P.S. §§ 7304(a) and (f).

According to the last sentence of Section 7301(b)(1), “clear and present danger” to others may be demonstrated as follows:

[A] clear and present danger of harm to others may be demonstrated by proof that the person has made threats of harm and has committed acts in furtherance of the threat to commit harm.

50 P.S. § 7301(b)(1) (emphasis added).

We emphasize that the Act does not require “threats of harm” and commission of “acts in furtherance of the threat to commit harm” as a condition precedent for finding “clear and present danger.” Rather, the Act specifies that the “threats and acts” formula may, not must, be used to demonstrate dangerousness. Since the statutory language does not dictate that a petitioner use only “threats and acts” to show “clear and present danger,” we conclude that other means can also be used.

While the language in the last sentence of Section 7301(b)(1) quoted above relating to “clear and present danger” and “threats and acts” refers generally to all individuals who are candidates for involuntary treatment, the Act also contains an alternative method for showing clear and present danger which applies specifically to insanity acquit-tees who are the subjects of petitions for involuntary commitment:

If, however, the person has been ... acquitted by reason of lack of criminal responsibility ... clear and present danger to others may be shown by establishing that the conduct charged in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated.

50 P.S. § 7301(b)(1).

Thus, when the individual is an insanity acquittee, the petitioner can either establish that the individual is a clear and present danger under the standards discussed above which relate to all involuntary commitments, or in the alternative, the petitioner need only show that: (1) the conduct that led to the criminal proceedings occurred; and (2) that there is a reasonable probability that it will occur again. Under this alternate formula, a petitioner need not prove that an insanity acquittee who had been charged with criminal homicide will actually kill again. It is sufficient to show a reasonable probability that some form of violent conduct will occur.

In this case we are asked to construe for the first time the meaning of the statutory phrase “reasonable probability.” Specifically, we must consider the Act’s requirement for establishing that there is a “reasonable probability” that the conduct which gave rise to an insanity acquittee’s involvement in criminal proceedings will recur.

We note that the purpose of the Act and the constitutional concerns it was meant to address indicate that reasonable probability cannot be equated with absolute certainty. Involuntary civil commitment of the mentally ill unquestionably constitutes a deprivation of liberty and may be accomplished only in accordance with due process protections. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982). Accordingly, the petitioner in an involuntary commitment proceeding must prove the requisite statutory grounds by clear and convincing evidence. 50 P.S. § 7304(f), construed in Commonwealth v. Hubert, 494 Pa. 148, 430 A.2d 1160 (1981).

Nonetheless, under the Act the individual’s liberty interests are not absolute. Rather, the Act attempts to strike a balance between the state’s valid interest in imposing and providing mental health treatment and the individual patient’s rights. Hutchinson, 500 Pa. at 156, 454 A.2d at 1010. As the Legislature itself stated:

The provisions of this act shall be interpreted in conformity with the principles of due process to make ... involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or to others.

50 P.S. § 7102.

The state must confine a mentally ill person who is dangerous to others in order to protect the welfare of the community. See Hutchinson, 500 Pa. at 157, 454 A.2d at 1011; see also Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (stating that “the purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual ... and to protect ... society from his potential dangerousness”).

Because of the need to balance the interests of the individual with those of the public, the Legislature did not, as appellant claims, mandate specific guidelines to meet, or demand proof beyond a reasonable doubt that an insanity acquittee would act dangerously again. Instead, the statute requires a “reasonable probability” of repetition. The term “reasonable” underscores the impossibility of demanding total accuracy in predictions of future dangerousness. As the Supreme Court stated in establishing the “clear and convincing” standard of proof for involuntary treatment:

Whether the individual is mentally ill and dangerous to ... others ... turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists ____
The subtleties and nuances of psychiatric diagnosis render certainties beyond reach in most situations____ Within the medical discipline, the traditional standard ... is a “reasonable medical certainty____” [The] “beyond a reasonable doubt” standard would forc[e] rejection] [of] commitment for many patients desperately in need of institutionalized psychiatric care.

Addington, 441 U.S. at 429-30, 99 S.Ct. at 1811, 60 L.Ed.2d at 333-4 (citations omitted) (emphasis added).

Although the legislature did not require indisputable proof that an insanity acquittee’s dangerous behavior would be repeated, it did prescribe the “probability” of such an event. “Probability” denotes “a chance stronger than possibility but falling short of certainty.” Webster’s New World Dictionary, College Edition (1966). The petitioner must therefore present evidence demonstrating a substantial likelihood that an insanity acquittee will act violently if he is not involuntarily committed. Mere speculation or conjecture that the individual could conceivably harm someone does not constitute a reasonable probability that aggressive conduct will recur.

We now examine the record to determine whether the facts adequately support the trial court’s finding of a reasonable probability that appellant would again inflict harm on others if he were not recommitted. The record clearly justifies the trial court’s finding. The witnesses at the hearing on March 1, 1985 consisted of three psychiatrists. All agreed that the appellant continued to suffer from schizophrenia, the same mental illness with which he was afflicted when he killed his neighbor. (Record at 14a, 44a, 56a). The prior conduct of one who is mentally ill may be an indicator of future behavior. See e.g. Rabkin, Criminal Behavior of Discharged Mental Patients: A Critical Appraisal of the Research, Psychol.Bull. 86(1): 1-27 (1979); Slovenko, Disposition of the Insanity Acquittee, 11 J. Psychiatry & L. 97, 102 (1983). Appellant’s involvement in such an extreme form of violence, while not dispositive, is one factor the hearing judge may consider in his evaluation of the appellant’s continued dangerousness.

The record also reveals that the appellant intimidated other patients on several occasions during his most recent commitment period. (Record at 26a, 30a). We note that in the recommitment setting, the statute provides that “it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.” 50 P.S. § 7304(a)(2) (emphasis added); see also In re S.O., 342 Pa.Super. 215, 492 A.2d 727 (1985) (proof of recurrence of violent behavior unnecessary for recommitment). Therefore, the lack of recent evidence of actual violent conduct would not negate a finding of clear and present danger and should be viewed in light of the fact that appellant has been confined to a mental hospital since the killing occurred.

In addition, and more importantly, the testimony elicited at the hearing presented a picture of appellant as a highly volatile individual who is able to maintain control only with the help of anti-psychotic medication and the structured environment of the hospital. (Record at 19a, 44a-47a). The record indicates that appellant loses control and experiences fluctuations in his condition. (Record at 49a). The anti-psychotic drug, Navane, that appellant takes every day has been effective in treating his aggressive symptoms. (Record at 16a, 49a). It is well-documented that without anti-psychotic medication, a schizophrenic’s risk of relapse into a psychotic state is greatly increased. See e.g. Davis, Overview: Maintenance Therapy in Psychiatry: Schizophrenia, Am.J. Psychiatry 132: 1237 (1975).

The highly structured setting at Wernersville State Hospital is also an important source of stability for the appellant. Two psychiatrists testified to appellant’s lack of “inner controls” and his need “to follow authority.” (Record at 46a, 27a). In their expert opinion, the psychiatrists stated that without the external constraints of the hospital, appellant would likely forego his medication and abuse alcohol. (Record at 21a, 46a). He would therefore be likely to react with violence to the stresses of everyday life. See e.g. Sosowsky, Crime and Violence Among Mental Patients Reconsidered in Light of the New Legal Relationship Between the State and the Mentally Ill, Am.J. Psychiatry 135:1 (1978) (noting the high incidence of violent crimes among the deinstitutionalized mentally ill).

We conclude that the record demonstrates by clear and convincing evidence the reasonable probability that the appellant would, without further involuntary treatment, behave violently again. Consequently, we affirm the trial court’s adjudication that the appellant continued to pose a clear and present danger.

The foregoing discussion also addresses appellant’s contention that his conduct during his most recent period of court-ordered commitment did not support the trial court’s finding of his need for continuing involuntary treatment. Appellant confuses Section 7305’s mandate that his need for treatment be shown, with Section 7304’s requirement of proof of his dangerousness to others that has already been discussed. The two issues are separate. Section 7305(a) clearly does not, as appellant maintains, specify that proof of dangerous acts must be presented in order to show appellant’s need for additional treatment:

[An] order shall be entered upon hearing on findings [of continued dangerousness] as required by sectio[n] 304(a) ... and the further finding of a need for continuing involuntary treatment as shown by conduct during the person’s most recent period of court-ordered treatment.

50 P.S. § 7305(a) (emphasis added); see In re S.O., 342 Pa.Super. at 232, 492 A.2d at 736.

Appellant’s need for continued involuntary treatment is evidenced by the numerous symptoms of schizophrenia he exhibited to the three psychiatrists who testified at the hearing. His condition was described as “unstable” and varying “from week to week” even in the structured setting of the hospital. (Record at 46a). All three psychiatrists were of the opinion that the appellant should not be released to outpatient care. (Record at 20a, 47a, 62a-63a).

We conclude that the record supports the trial court’s determination that the appellant, as a result of his mental illness, represents a clear and present danger to others, and that his conduct during his most recent period of court-ordered commitment demonstrates his continuing need for involuntary treatment. Neither society nor the appellant himself would benefit from his release.

Accordingly, we affirm the trial court’s order.

      . Although appellant failed to raise this issue at trial, he has not waived his right to do so on appeal. Objections to subject matter jurisdiction may be made at any stage in the proceedings by the parties or by the court on its own motion. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974), aff’d., 468 Pa. 13, 359 A.2d 788 (1976).

      . Section 7109(b) provides as follows:
      In all cases in which the hearing is conducted by a mental health review officer, a person made subject to treatment shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel____ (emphasis added).

      . Under Section 7109(a) an MHRO authorized by the court may also conduct involuntary commitment proceedings.

      . Sections 7305(a) and 7304(a)(2) provide in pertinent parts:
      § 7305. Additional periods of court-ordered involuntary treatment
      (a) At the expiration of a period of court-ordered involuntary treatment under section 304(g) or this section, the court may order treatment for an additional period upon the application of the county administrator or the director of the facility in which the person is receiving treatment. Such order shall be entered upon hearing on findings as required by sections 304(a) and (b), and the further finding of a need for continuing involuntary treatment as shown by conduct during the person’s most recent period of court-ordered treatment.
      § 7304. Court-ordered involuntary treatment not to exceed ninety days
      (a) Persons for Whom Application May be Made.
      (2) Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required by section 301 in fact occurred, and that his condition continues to evidence a clear

        and present danger to himself or others. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.
      (emphasis added).

      . The lower court based its decision to recommit the appellant on evidence of his continuing dangerousness to others. We therefore do not construe the statute’s requirements for a showing of dangerousness to self under Section 7301(b)(2).

      . We note that the Legislature did not hesitate to use the word "shall" in the Act’s parallel definiiion of clear and present danger to self: "... shall be established by proof that the person has made threats to commit mutilation____” See 50 Pa.C.S.A. § 7301(b)(2)(iii). Clearly, the Legislature intended to distinguish the elements of proof required for each provision. See e.g. Matter of Columbia Borough, 24 Pa. Cmwlth. 190, 193, 354 A.2d 277, 280 (1976).

      . Persons who have been acquitted because of lack of criminal responsibility, or insanity acquittees, may be involuntarily committed under Section 7406 of the Act. 50 P.S. § 7406.


source: Caselaw Access Project

author:
BROSKY, Judge:
      SPAETH, President Judge,

license: Public Domain

text:
    507 A.2d 389
    ERIE INSURANCE EXCHANGE, Appellant, v. TRANSAMERICA INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed Jan. 17, 1986.
    Reargument Denied March 31, 1986.

      Charles Kirshner, Pittsburgh, for appellant.
    Robert A. Arcovio, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This appeal is from a declaratory judgment in a civil dispute over insurance coverage of an automobile accident when the automobile was set in motion by a three-year-old child. The parties are the insurer in an automobile policy, appellant, and the insurer in a homeowner’s policy, appellee. The court below held that the appellant as writer of the automobile policy was solely liable for coverage. We agree and, accordingly, affirm.

The relevant facts and procedural history were accurately summarized in the trial court opinion.

On March 19, 1976, Landis Robinson visited the home of Mr. and Mrs. Gilbert to sell insurance to them. She parked her car facing downhill in the street. Erin Gilbert, the daughter of the Gilbert couple, somehow obtained the keys to Robinson’s car and put the car in motion. It traveled downhill and struck two children. Two separate suits were filed on behalf of the two injured children. In one case, the Gilberts were named as the original defendants, and in the other, they were joined as additional defendants. The liability was predicated on Erin’s activity involving the setting of an automobile in motion. In the direct lawsuit, wherein the Gilberts were parties defendant, the allegations were that Erin drove the car.
In the other lawsuit, the negligence was predicated on the parents jointly and/or alternatively allowing their minor daughter to attempt to operate a motor vehicle and permitting the child to drive the automobile.
The Plaintiff, Erie Insurance Exchange, had issued an automobile policy to husband, Bobby G. Gilbert. The defendant, Transamerica, had issued a homeowners policy to both Gilberts as owners of their household. Both policies were in effect on March 19, 1976.
After the filing of the aforementioned lawsuits against the Gilberts, they were settled. Erie had appeared and defended and both carriers paid one-half of the settlement amount.
The above cross-declaratory judgment actions seek to establish sole liability of the other as mentioned before, seeking the entire cost of defense and the entire amount of settlement to be imposed on the other.

The pertinent portions of the policies are excerpted here. The automobile insurance policy, written by appellants provides:

I. Coverage A — Bodily Injury Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, ... caused by accident and arising out of the ownership, maintenance or use of the automobile.

The homeowner’s policy, written by appellee, is the mirror image of the other:

This policy does not apply:
1. Under coverage E — Personal Liability ...
(a) to bodily injury or to property damage arising out of the ... operation, use ... of
(2) any motor vehicle ... operated by ... any insured ____

Two questions, then, are presented in this appeal. First, given the circumstances of this accident, can the automobile policy be said to provide coverage? In other words, can a three-year-old child be said to “use” an automobile so as to come within the terms of the policy? Second, can a claim on the part of the victims of negligent entrustment by the parents of the automobile to the child be covered by a homeowner’s policy which excludes coverage for events arising out of the operation or use of a motor vehicle? In other words, is that negligent entrustment tort claim essentially independent of the nature of what was entrusted?

Each of these two issues will be treated in turn.

Can an automobile be used by a child?

A. Out of state precedent.

Four of our sister states have considered the issue before us: does an insurance policy covering the “use” of a vehicle include the consequences of a young child setting the vehicle in motion? Three of these cases — Tucker, O’Brien and Assurance —concluded that there was no “use” of the automobile so as to invoke the policy’s coverage. One case — Bartels—came to the contrary conclusion. However, an examination of the rationale of each of these two contrary lines fails to inspire an inclination in either direction.

Bartels applied a test laid down in an earlier case out of the Superior Court of New Jersey:

The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected.

Bartels, supra, 171 N.J.Super. at 27, 407 A.2d at 1250, quoting Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J.Super. 29, 38, 312 A.2d 664, 669 (1973), aff’d o.b. 65 N.J. 152, 319 A.2d 732 (1974).

Quite obviously, difficulties would arise in applying this test to an actual situation. No doubt the Superior Court of New Jersey confronted just this difficulty for, without any further analysis, they make the following conclusory statement, disposing of the issue:

Using the same criterion, the conclusion follows that the rolling of the automobile down the sloping driveway with the Romano children in occupancy was a consequence of the use of the automobile, and encompassed by the automobile policy coverage.

Bartels, supra, 171 N.J.Super. at 27, 407 A.2d at 1250.

The lack of predictability inherent in this approach is demonstrated by the fact that Tucker, using a nearly identical test, comes to the contrary conclusion.

In determining whether the negligent act that caused a bodily injury arose out of the ‘use’ of a motor vehicle within the coverage of a motor vehicle liability policy, the court must consider whether it was a natural and reasonable incident or the consequence of the use of the vehicle for the purposes shown by the declaration, though not foreseen or expected.

Tucker, supra, at 228.

The remaining case uses a similar test — the intentions of the parties to the contract. “ ... it is unreasonable to conclude that the parties to this insurance contract intended to insure the truck’s use as the plaything of a six-year-old child.” O’Brien, supra, at 1282. See also Tucker, supra, at 229. It is a highly dubious proposition, however, that insurance only covers those situations which the parties visualized at the time the contract was made. The history of the insurance industry is replete with bizarre situations, barely conceivable — much less actually in the consciousness of the parties — in which insurance protects the individual. Indeed, it is to guard against such unlikely and unthought of occurrences that insurance is, at least partially, purchased in the first instance.

II] What was foreseen, contemplated or intended by the parties at the time the contract was entered into is a standard so vague and difficult of objective resolution that we must reject its application in the instant case.

* * * * * sfc

Another tack was also used in the three cases holding that there was no use. It is equally unprofitable.

“No reasonable purpose could have been accomplished by Ronald’s ‘driving’ the truck when his mother was engaged in unloading cans full of water from the rear of the truck.” O ’Brien, supra, at 1282. If only reasonable purposes were the subject of insurance coverage, then all those activities negligently or recklessly engaged in by adults would be uninsurable. This is plainly not the case. It is against the consequences of our oversights and carelessness that we wish to be insured — not merely against those occurrences in which we are totally blameless victims.

In a similar vein, Assurance held that the releasing of the emergency brake by a three-year-old was not a use of the vehicle qua vehicle, but as a plaything. The results gainsay that. It was the effective use of the vehicle which, in fact, put it in motion. O’Brien states, quite perceptively, “It is, in fact, quite possible that Ronald intended, by childish fantasy or otherwise, to ‘drive’ the truck when the accident occurred.” O’Brien, supra, at 1281. If, then, the child had the intent to operate the vehicle and succeeded in doing so, how is that to be meaningfully distinguished from the same intent and actions performed by an adult?

Finding little guidance in the cases on point, we will now examine general principles of insurance interpretation to determine if they are more helpful in the resolution of the issue before us.

B.. Principles of Interpretation.

The construction of a writing like the one at issue is, of course, a question of law over which this court need not defer to the lower court. See Cowen v. Krasas, 438 Pa. 171, 264 A.2d 628 (1970) and cases cited therein. In the course of such review, the standards to be applied are well established.

First, the words included in the instrument must be given their ordinary meaning. Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958); Masters v. Celina Mut. Ins. Co., 209 Pa.Super 111, 114-15, 224 A.2d 774, 776 (1966) (Montgomery, J.). Second, while ambiguous terms in an insurance policy should be construed against the insurer, Nusbaum v. Hartford Fire Ins. Co., 276 Pa. 526, 529, 120 A. 481, 482 (1923), the court should not “torture” the language to create an ambiguity where none exists. Bishop v. Washington, 331 Pa.Super. 387, 397-98, 480 A.2d 1088, 1093 (1984). Third, a term will be held ambiguous only “if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning.” Celley v. Mut. Benefit Health & Accident Ass’n., 229 Pa.Super. 475, 481-2, 324 A.2d 430, 434 (1974). Fourth, “The policy like every other contract, must be read in its entirety and the intent gathered from a consideration of the entire instrument.” Smith v. Cassida, 403 Pa. 404, 408, 169 A.2d 539, 541 (1961). See also Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 372-73, 390 A.2d 736, 739 (1978). Finally, the “true intent ... is to be determined not only from its language, but from all the surrounding circumstances.” Twp. Mt. Lebanon v. Metropolitan Cas. Ins. Co. of N.Y., 106 Pa.Super. 209, 214, 161 A. 632, 633 (1932).

In looking at the provision in question in its entirety, and at its surrounding circumstances, as a reasonably intelligent person would, we do not find that the correct interpretation is apparent. In that ambiguities are to be construed against the insurer, this alone would justify an affirmance. That conclusion is bolstered after an examination of an analagous mode of interpretation — that adopted in Federal Trade Commission cases.

C. FTC Cases.

The federal case law starts from the same point as the law in Pennsylvania. “Advertisements must be considered in their entirety, and as they would be read by those to whom they appeal.” Aronberg v. Federal Trade Commission, 132 F.2d 165 (7th Cir.1942). It is the application and amplification of this common principle by the federal courts that is instructive.

“The important criterion is the net impression which the advertisement is likely to make upon the general populace.” Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 143 F.2d 676, 679 (2nd Cir.1944). “ ... we are not to look to technical interpretation of each phrase, but must look to the overall impression ... are likely to make on the buying public.” Murray Space Shoe Corp. v. Federal Trade Commission, 304 F.2d 270, (2nd Cir.1962). “The language of the ordinary purchaser is ordinary and unaffected. He is not an ‘expert in grammatical construction’ or an ‘educated analytical reader’ and, therefore, he does not normally subject every word ... to careful study.” Callman, Unfair Competition and Trademarks. § 19.2(a)(1), at 344 (1950) as quoted in Federal Trade Commission v. Sterling Drug, Inc., 317 F.2d 669 (2nd Cir.1963). “The cardinal factor is the probable effect which the ... handiwork will have upon the eye and mind of the reader. It is therefore necessary in these cases to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. Id. (emphasis supplied). Advertisements are not intended “to be carefully dissected with a dictionary at hand, but rather to produce an impression upon” prospective purchasers. Newton Tea & Spice Co. v. U.S., 288 F. 475, 479 (6th Cir.1923).

This follows from an elementary proposition, “ ‘impressions’ are the primary targets of the ad-writers.” Stanley Laboratories v. Federal Trade Commission, 138 F.2d 388, 392 (9th Cir.1943).

The interpretive scheme specifies how to accomplish the avoidance of hypertechnical construction. “In evaluating the tendency of language to deceive, the Commission should look not to the most sophisticated readers but rather to the least.” Exposition Press v. Federal Trade Commission, 295 F.2d 869 (2nd Cir.1961). Similarly, the Seventh Circuit wrote in Aronberg, supra, at 167, “To an educated analytical reader, these and similar statements may not seem to claim anything more than to ... But the buying public does not ordinarily carefully study or weigh each word____” Thus the vendor can be fairly held to have made a statement which was not, strictly speaking, actually made. “We think that there is merit in petitioner’s contention that this and similar statements, when carefully scrutinized, may be thus construed. The weakness of this position, however, lies in the fact that such representations are made to the public, who, we assume, are not, as a whole, experts in grammatical construction. Their education in parsing a sentence has either been neglected or forgotten.” D.D.D. Corporation v. Fedl. Trade Commsn., 125 F.2d 679, 681 (7th Cir.1942).

The rationale for all of the foregoing is stated with the eloquence that comes from simplicity. “The law is not made for experts but to protect the public. . . .” Aronberg, supra, at 167.

When the issue before us is placed in this matrix, its solution finally becomes apparent. How would the insured have looked at the contractual provisions in their entirety, and at their implications? Without engaging in hypertech-nical and disputatious dissection of the terms, what was the intended impression created by the insurer in using the language in the contract which it framed? The answer to these questions is clear.

When the average insured purchases insurance covering the “repair, maintenance or use” of his vehicle he no doubt is under the impression — indeed is deliberately led to so believe — that he is “covered”; that he is economically protected from liability for occurrences having some real causal relationship with the vehicle.

Having created that impression as a marketing technique, the courts should not look with favor when that same party later seeks to split legal hairs in avoiding the application of that coverage to a situation simply because that situation is out of the ordinary run of type of accident.

We conclude, therefore, that the vehicle insurance policy does cover the instant situation.

Can the negligent entrustment of an automobile be covered by homeowner’s insurance?

The precise issue for resolution, therefore, is whether an insurer, under a homeowner’s policy of insurance, is required to provide a defense and coverage to an insured who is sued for alleged negligent entrustment of an automobile, in the face of a stated policy exception which excludes coverage for bodily injury claims arising out of the use of motor vehicles owned by the insured.

Ins. Co. of North America v. Waterhouse, 424 A.2d 675, 680 (Del.Super.1980).

A number of our sister states have considered this question. It has been answered both ways. Two different rationales have been used to arrive at a positive answer and one that resulted in a negative response.

A. Dovetailing.

This theory simply holds that any one occurrence can only be covered by either the automobile or the homeowner’s policy — but not both. That mutually exclusive effect is the result of the exclusionary clause of the homeowner’s policy acting as the mirror image of the inclusionary clause of the automobile policy. The two coverages dovetail, the one filling the gaps created by the other. Automobile-related occurrences are then within the sole province of the automobile policy. See Westchester Fire Ins. Co. v. Continental Ins. Co., supra. The outcome of this rationale would be to exclude homeowner’s policy coverage for negligent entrustment of an automobile. The dovetail approach, however, is not available to us. For reasons which need not delay us here, this court rejected that theory in Eichelberger v. Warner, 290 Pa.Super. 269, 276, 434 A.2d 747, 750 (1981): “Because of these canons of construction, it must be emphasized that a homeowner’s policy and an automobile policy are not necessarily mutually exclusive.”

B. Entrustment as Separate from the Use.

The two remaining ways of treating this issue both involve an analysis of the nature of the negligent entrustment tort. One views the negligent entrustment of the automobile as being separate from the use of the vehicle, with the entrustment being the primary negligence, while the other sees the use as an integral part of the tort of negligent entrustment.

INA argues that, regardless of the nature of the tort liability asserted against Dr. Waterhouse, if the incident which gave rise to liability emanated from the ownership or operation of a motor vehicle, coverage is excluded. To the contrary, Dr. Waterhouse contends that the negligent entrustment claim involves a judgmental tort, with the chattel involved merely an incidental circumstance of the tortious conduct.

Waterhouse, supra, 424 A.2d at 680.

It will be useful, before examining these treatments, to have a definition of the tort.

Such a cause of action, although infrequently prosecuted, is not novel and sets forth a valid claim for relief predicated on the theory of common-law negligence. Although parents under the common law are generally not held liable in damages for the torts of their minor children solely because of that relationship, where the parents cause the tort to occur through their own negligence, they may be held liable for the damages. n3 Restatement, Torts 2d § 316 states:
“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.” See, also, 2 Harper & James, Torts, p. 1056, where it states: “Where a parent has reason to know of a propensity for a particular type of dangerous conduct on the part of his minor child he is bound to take reasonable steps (by discipline, training, or the like) to curb or guard against the propensity.”

Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 330, 204 N.W.2d 426, 428 (1973).

Nationally, the leading case holding that the homeowner’s policy does cover situations like the one before us is Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 149-50, 519 P.2d 737, 741 (1974). The central portion of that opinion follows.

It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms, (Krug v. Millers’ Mutual Insurance Ass’n., 209 Kan. 111, 495 P.2d 949.) In the homeowner’s policy involved in this case the company agreed with the named insured to pay on behalf of the insured all sums which the insured should become legally liable to pay because of bodily injury and property damages. There is nothing in this broad insuring clause which restricts coverage to accidents or injuries occurring on the premises of the homeowner. In fact it is clear that the insuring clause covers a wide variety of accidents which might occur off the premises. Any escape from liability by Upland Mutual under its policy must be found in the special exclusion which has been set forth in full above. We have held that where an insurer attempts to avoid liability under an insurance policy on the ground that the loss for which recovery is sought is covered by some exclusionary clause, the burden is on the insurer to prove the facts which bring the case within the specified exception. (Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P.2d 264).
In this case the action filed by the Forresters against the Noels was not based upon the “ownership, maintenance, operation, use, loading or unloading of ... automobiles”, even though the immediate cause of the injury and death was Steven’s operation of the automobile. The basis of the Forresters’ action was the alleged negligence of the Noels in knowingly entrusting an automobile to a careless and reckless driver.
Nowhere is it alleged in the Forresters’ petition that the Noels are liable on the theory that they owned, maintained, operated or used the automobile or that the automobile was negligently driven by the Noels or their agent. The theory of the Forresters’ damage action is not directly related to the “ownership, maintenance, operation, use” of the vehicle.

The Tenth Circuit came to the same conclusion more succinctly.

The trial court, however, drew a distinction between tort liability arising out of the negligent use of the minibike and the liability of Mr. and/or Mrs. Douglass for the negligent act of entrusting their 10-year-old son with the minibike. It said: [The] gist of the action, the gravamen, if you will, is not the use of the motor vehicle, which arguably establishes a basis for these exclusions of the policy to become operative, but rather the gist or the gravamen of the tort is the failure to control and the failure to supervise what amounts to a dangerous instrumentality; and that is a ten-year-old child with a self-propelled vehicle or projectile such as this minibike.

Douglass v. Hartford Ins. Co., 602 F.2d 934, 935-36 (10th Cir.1979).

Although this line of cases certainly is of arguable merit, the other line of cases should also be examined.

C. Instrumentality.

The line of cases using this theory is numerous. One of the two leading expositions of this theory is found in Waterhouse, supra, 424 A.2d at 682.

Admittedly, the tort of negligent entrustment involves conduct which, in part, is distinct from the operation of the instrumentality which inflicts the harm. It is the negligent entrusting which creates the unreasonable risk, although the magnitude of the harm may depend upon the dangerous character of the product entrusted. See, Prosser, Law of Torts (4th Ed.) p. 678. It is not difficult to envision situations in which the type of instrumentality entrusted, (e.g., a gun or explosives), squares with the insurer’s obligation to defend claims asserted against a parent-entrustor under a policy of general liability. But where the parties to a policy of general risk insurance agree to the specific exclusion of an instrumentality which, in operation and usage, is the predominant source of public liability claims, the focus changes. Regardless of when and where the judgment is made to entrust the automobile, the essential triggering element giving rise to the tort is the use of the chosen instrumentality — the automobile. It is this use which is specifically proscribed and, in the normal expectation of the parties to the insuring agreement, separately insured. While it is laudable to attempt an expansive reading of the policy in an effort to provide the insured with maximum coverage, the clear language of the exclusion cannot be tortured to achieve that result.

To similar effect is the oft-quoted case of Cooter v. State Farm Fire and Casualty Co., 344 So.2d 496, 498 (Al.1977).

The fatal weakness of the appellants’ contention for coverage lies in its failure to acknowledge one of the elements essential to recovery for negligent entrustment — the negligent operation of the motor vehicle____ The plain wording of the exclusionary provision reveals the deficiency in this rationale. While liability (apart from coverage) for negligent entrustment is not conditioned upon the entrustor’s ownership or use of the vehicle, negligent use by the one to whom it is entrusted is essential to recovery. It is the concurrence of these dual elements — negligent entrustment by the owner or custodian of the instrumentality plus its negligent use by the entrustee — that is missing in the rationale of those cases upholding coverage. Taken literally, this line of reasoning — that negligent entrustment of the vehicle, and not its use, is the basis of insured’s alleged liability — the injured party could recover absent any showing that the incompetent to whom the vehicle is entrusted caused the injury by his negligent use of the vehicle. As we have already observed, this does not comport with the elements that make up this tort concept of negligent entrustment.

The courts of Michigan also note that:

“It could not be sensibly contended, for instance, that the entrusted driver, thus known to be unfit or incompetent, had started any chain of causation back to the entrustor if such entrusted driver, in the operation of the entrusted car, had himself committed no act or omission constituting actionable negligence.”

Perin v. Pueler, (On Rehearing), 373 Mich. 531, 539, 130 N.W.2d 4, (1964) as quoted in Michigan Mutl. Ins. Co. v. Sunstrum, 111 Mich.App. 98, 104, 315 N.W.2d 154, 157 (1981).

Cases adopting this instrumentality approach are both more numerous than the other line and reflect the trend, as they tend to be the more recent cases. We find this line of cases, rejecting coverage, to be more persuasive. This result is also consistent with our FTC-guided disposition of the first issue. Two of the cases cited above have language which supports this conclusion.

‘[T]he test is not what the insurer intended its words to mean but what a reasonable person in the position of an insured would have understood the words to mean.’ Id. The insured contracted for homeowner’s insurance. It cannot be argued that they thought they were purchasing automobile liability coverage. We hold that, strictly construed or not, this exclusionary language removes negligent entrustment of an automobile operated away from the premises from the coverage of the policy.

Bankert, supra, 105 Wis.2d at 445, 313 N.W.2d at 857.

While the contemplation of the parties to a pre-printed contract of insurance is a nebulous concept and one usually invoked after a claim has arisen, it is a reasonable assumption that a purchaser of homeowner’s insurance does not obtain such insurance to protect him from the ordinary risks inherent in the ownership or operation of an automobile.

Waterhouse, supra, 424 A.2d at 682.

We hold, therefore, that the homeowner’s insurance policy does not give rise to coverage for the negligent entrustment of an automobile. Coupled with our earlier conclusion that the automobile policy did cover the child’s use of the automobile, the result is that the trial court decided this case correctly.

Order affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the court.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority that a three year-old’s act of placing an automobile in motion constitutes a “use” of the automobile by the child for which coverage is available under the automobile insurance policy. Rather, I am persuaded by the reasoning of State Farm Mutual Automobile Insurance Co. v. O’Brien, 380 F.Supp. 1279 (D.Minn.1974), and Assurance Company of America v. Bell, 108 Ga.App. 766, 134 S.E.2d 540 (1963). In declining to follow these cases, the majority, it seems to me, has violated the principles of interpretation it cites: it has not given “use” its “ordinary meaning,” and it has “ ‘torture[d]’ the language to create an ambiguity where none exists.” Majority at 84-85. The FTC cases cited by the majority, id. at 85 et seq., are inapplicable, I suggest. We are construing an insurance policy, not an advertisement. If we apply the FTC cases, however, and ask, as the majority does, “[Wjhat was the intended impression created by the insurer[?],” id. at 86-87, still, the answer seems to me to be, “Not to cover what occurred here.”

I am also unable to agree with the majority regarding the homeowner’s policy. In my view, the policy does provide coverage. The exclusion quoted by the majority, see its op. at 81, does not apply for the same reason that the automobile insurance policy does not provide coverage: A three year-old cannot “use” an automobile. No argument having been made that any other exclusion applies, the conclusion follows that coverage is available. Since the exclusion does not apply, I do not reach the issue of negligent entrustment.

The order of the trial court should be reversed and an order entered requiring appellee, as the carrier on the homeowner’s policy, to provide coverage.

      . Bartels v. Romano, 171 N.J.Super. 23, 407 A.2d 1248 (1979); Tucker v. State Farm Mutual Automobile Ins. Co., 154 So.2d 226 (La.App. 1963); State Farm Mutual Automobile Ins. Co. v. O’Brien, 380 F.Supp. 1279 (D.Minn.1974); Assurance Co. of America v. Bell, 108 Ga.App. 766, 134 S.E.2d 540 (1963).

      . We note that Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983) has changed some of the interpretatory approach to insurance contracts. Standard held, "that where ... the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to reach the limitation or that he did not understand it." Id., 503 Pa. at 306, 469 A.2d at 567. That holding is not applicable to the instant case. The insured is not contending here that he failed to read the limitation or that he did not understand it; the contention is that it means something different from the insurer's interpretation. (Though the opposing party here is another insurance company, and not the insured, the arguments that are made as to interpretation are properly from the viewpoint of the insured.)

      . The Colorado Court of Appeals decided the issue the same way but on a slightly different ground. It held that the phrase “arising out of” the use of an automobile to be ambiguous and, therefore construed it against the insurer. United Fire & Casualty Co. v. Day, 657 P.2d 981 (Co.Crt.App.1982). Two other jurisdictions have also come to the conclusion that the homeowner’s insurance is applicable to a situation of this type. Lalomia v. Bankers & Shoppers Ins. Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018 (190); McDonald v. Home Ins. Co., 97 N.J.Super. 501, 235 A.2d 480 (1967).

      . Other cases using this same approach are: Lumbermen’s Mutl. Cas. Co. v. Kosies, 124 Ariz. 136, 602 P.2d 517 (1979); Barnstable County Mutl. Ins. Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Bankert v. Threshermen’s Mutl. Ins. Co., 105 Wis.2d 438, 313 N.W.2d 854 (Crt.App.1981); Fidelity & Guaranty Ins. Underwriters Inc. v. McManus, 633 S.W.2d 787 (Tex. 1982); State Farm Fire and Casualty Co. v. McGlawn, 84 Ill.App.3d 107, 404 N.E.2d 1122 (1980); Aetna Cas. and Surety Co. v. American Manufacturers Mutl. Ins. Co., 261 Ark. 326, 547 S.W.2d 757 (1977); Great Central Ins. Co. v. Roemmich, 291 N.W.2d 772 (S.D.1980); Gargano v. Liberty Mutual Ins. Co., 384 So.2d 220 (Dist.Crt.App.Fla.1980).


author: ROWLEY, Judge: SPAETH, President Judge,

text:
    507 A.2d 398
    COMMONWEALTH of Pennsylvania, Appellant, v. Peter R. DeFAVERI.
    Superior Court of Pennsylvania.
    Argued May 13, 1985.
    Filed Feb. 3, 1986.
    Reargument Denied April 18, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Larry P. Gaitens, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.

       This case was decided prior to the expiration of former President Judge Spaeth’s term of office.

   OPINION OF THE COURT

ROWLEY, Judge:

The appellee, Peter DeFaveri, was arrested and charged with recklessly endangering another person, driving under the influence of alcohol, homicide by vehicle, involuntary manslaughter, and reckless driving following a head-on collision in which DeFaveri was injured and two others were killed. Police and emergency crew personnel at the scene of the accident smelled alcohol on DeFaveri’s breath and found him to be combative. As a result of his injuries, DeFaveri was taken to a hospital emergency room. While there, a police officer advised him of his Miranda rights. DeFaveri, while capable of responding, chose to remain silent. The officer then arrested DeFaveri and directed that two vials of blood be drawn from him. DeFaveri maintained his silence, refusing to consent to the test either orally or in writing. The blood samples revealed that DeFaveri’s blood alcohol content was 0.33, a result which he petitioned the trial court to suppress. Following a hearing, the court granted the motion to suppress. The court held, “The current version of § 1547 permits a motorist to refuse a requested blood test when a police officer has reasonable grounds to believe ‘the person [requested to take the test] to have been driving, operating or in actual physical control of the movement of a motor vehicle.’ ” R.R. at 7. The Commonwealth now brings this appeal.

The Pennsylvania Supreme Court has established that the Commonwealth may appeal from an adverse ruling by the trial court on a suppression motion “when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.” Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth has so certified and the appeal is properly before us.

The appellee argues that § 1547 of the Motor Vehicle Code (75 Pa.C.S.) affords all drivers the right to refuse a blood test. Section 1547 provides in part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.
(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.

75 Pa.C.S. § 1547.

The laws criminalizing drunken driving have undergone radical change in recent years, primarily in response to skyrocketing figures representing drunken driving fatalities and intense lobbying pressure from civic organizations such as Mothers Against Drunk Driving (MADD). Because of the complex issues typically presented in cases involving charges of Driving Under the Influence, we must pay particular attention to clarifying the question before us. To accomplish this task and to pare away the confusion attendant to this case, we will first set forth the issues not involved and then discuss the question that the case does present to us.

Neither party alleges that the police officer who was called to the accident lacked probable cause to believe that the appellee was driving while under the influence of alcohol. The facts indicate that appellee was the sole occupant of the van found tipped on its side, that appellee smelled strongly of alcohol, and that appellee was combative. The applicability of § 1547(a)(1), pertaining to a person’s implied consent to a blood test if a police officer has reasonable grounds to believe that the person was driving under the influence, is therefore not called into question.

There is also no issue raised regarding § 1547(a)(2): The appellee was driving the van, the van was involved in an accident, the appellee required treatment at a medical facility and two people in the other car were killed. There is no doubt, then, that the implied consent provision applies to the appellee — by exercising his privilege of driving in the Commonwealth of Pennsylvania, he also consented to a chemical test of his blood.

Finally, we are not presented with the question of whether the taking of the blood sample from the appellee violated either the federal or the state constitutions. Our Court has recently stated,

We have held that under [75 Pa.C.S. § 1547(a)] — more precisely, under the substantially identical predecessor of this provision — police may constitutionally conduct a chemical test of a suspect’s blood, without having arrested him and without transporting him from the scene in order to conduct the test, if they have probable cause to believe that the suspect has been driving under the influence of alcohol or a controlled substance.

Commonwealth v. Cieri, 346 Pa.Super. 77, 87, 499 A.2d 317, 322 (1985). The Court concluded by saying, “We see no reason why the existence of probable cause, which would unquestionably suffice as a constitutional basis for a test administered at the scene, may not also suffice as a constitutional basis for a test administered at the hospital.” Id., 346 Pa.Superior Ct. at 90, 91, 499 A.2d at 324. See also Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).

In the instant case, the police officer had probable cause to believe that the appellee had been driving under the influence of alcohol. A serious accident involving two fatalities had occurred, the appellee smelled strongly of alcohol and was combative at the scene of the accident, and the position of the vehicles after the collision indicated that the appellee’s van had crossed over the center line. Additionally, the appellee does not question that probable cause existed and that the test was performed by qualified medical personnel at the direction of a police officer pursuant to a lawful arrest.

Thus, the issue before us is not whether § 1547(a)’s provision on implied consent applies to the instant case, but whether § 1547(b) provides every motorist in Pennsylvania with a statutory right to refuse to permit a chemical test of his breath, blood, or urine. The appellee maintains that § 1547(b) extends to every driver, in every case, the choice of either submitting to the test or refusing the test and suffering the consequence of having his license suspended. In support of this assertion, appellee cites a portion of § 1547(b)(1): “If any person ... is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted____” Appellee’s Brief at 5.

The words appellee has omitted from the quoted material reveal as much as those he quotes. The provision reads in full: “If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted. . . .” (Emphasis added.) The Commonwealth asserts that § 1547(b)(1), as stated in full, grants a right of refusal only to those drivers arrested for violating § 3731 alone. Drivers who violate other provisions of the Vehicle Code and drivers who violate other sections in addition to § 3731 are not given the right to refuse a chemical test.

Appellee contends that “Section 1547(b)(1) extends the right of refusal to ‘any person placed under arrest for a violation of Section 3731____’” Appellee’s Brief at 7. He then notes that “Mr. DeFaveri was placed under arrest for an alleged violation of Section 3731, and therefore, the Section 1547(b)(1) right of refusal should apply to him under the express terms of that section.” Id. This argument overlooks the rule of statutory construction creating the inference that when a term is expressly included in a statute, “all omissions should be understood as exclusions.” Commonwealth v. Charles, 270 Pa.Super. 280, 287, 411 A.2d 527, 530 (1979). Appellee would have us read §§ 3735, 3732, and 3714, in addition to § 3731, into § 1547(b)(1). However, where the Legislature has not supplied a reference to these provisions, our Court is without the power to introduce them into the statute. ‘ Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983).

The Legislature has created in § 1547(a) an implied consent provision that encompasses every driver in the Commonwealth either suspected by the police of violating § 3731 or involved in an accident in which someone requires treatment at a hospital or is killed. In § 1547(b)(1), the Legislature has extended to drivers arrested for Driving Under the Influence the option of revoking their implied consent created under subsection (a). Appellee argues that “the right of refusal clearly applies to all alcohol-related offenses under the vehicle code, as indicated by Sections 1546(c) and (e) and despite the limited reference in Section 1547(b)(1) to the simple offense of driving while under the influence.” Appellee’s Brief at 9.

Appellee’s reading of § 1547 dictates that every time alcohol is a factor in a Vehicle Code offense, the law permits the erring driver to refuse a chemical test. The converse of this interpretation, then, is that only drivers who are devoid of even the vaguest aura of alcohol may not revoke their implied consent to a chemical test. Consider the consequences of such an interpretation: A sober driver who falls asleep, crosses the center line and strikes another car would have no lawful right to refuse to be tested for drug or alcohol abuse. An intoxicated driver, however, exhibiting all the manifestations of drunkenness, who also crosses the center line and strikes an oncoming car, would be afforded the right to refuse the test.

To avoid this illogical result while still according merit to the appellee’s position, we would be compelled to interpret § 1547(b)(1) as extending the option to refuse testing to all drivers — those who are intoxicated and those who are not. But when this analysis of the statute is scrutinized, its flaws become glaringly obvious. Subsection (a) would create the doctrine of implied consent, while subsection (b)(1) would nullify that doctrine by giving all drivers the right to revoke their implied consent. Subsection (b)(1) would render subsection (a) meaningless.

Either interpretation of § 1547 posited by appellee yields results which are unsuited to the ostensible purpose of the statute. The right to revoke implied consent, as prescribed by § 1547(b)(1), is directed at motorists arrested for Driving Under the Influence. Then and only then may a driver refuse to submit to chemical testing. Section 1547(b)(l)’s right of refusal is limited to those situations in which there has been no serious accident, no one injured, and no one killed. Any other construction emasculates the legislation. “[T]he language of a statute must be read in a sense which harmonizes with the subject matter and its general purpose and object.” Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 512, 442 A.2d 252, 256 (1981).

Our interpretation of § 1547 is strengthened by another section of the Vehicle Code—§ 3755, pertaining to reports by emergency room personnel. This statute governs situations in which the driver of a vehicle is involved in an accident, probable cause exists to believe that he was driving under the influence of alcohol or a controlled substance, and he requires treatment in the emergency room of a hospital. If these criteria are met, the statute mandates the emergency room physician to extract blood samples from the driver. Section 3755 also applies when, because of the throes of the accident, it is unclear who was driving the vehicle. In such circumstances, the statute dictates that all the occupants of the vehicle are to have blood samples drawn.

If we adopted the interpretation of § 1547 suggested by the appellee and the trial court, not only would we negate the purpose of § 1547(a), we would create a further anomoly if a situation arose which triggered the application of § 3755: if an accident occurred, all the occupants of a vehicle would be tested to determine their blood alcohol content if the driver was unknown. But if the driver could be identified, he would be given the right under § 1547(b)(1) to refuse the blood test, even if he was drunk. And according to appellee, he would be given this right especially if he was drunk.

Order reversed.

SPAETH, Former President Judge, files a concurring opinion.

WIEAND, J., concurred in the result.

SPAETH, President Judge,

concurring:

I concur in the order reversing the trial court’s suppression of the blood test results because I understand our holding to be that there is no right to refuse chemical testing where there is probable cause to believe that the defendant was driving under the influence of alcohol and where there was “an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.” 75 Pa.C.S. § 1547(a)(2). I make this observation because some portions of the majority opinion may be read more broadly, e.g., the statement that the right to revoke implied consent “is directed at motorists arrested for Driving Under the Influence [and] [t]hen and only then may a driver refuse to submit to chemical testing.” Majority at 102. Also, I note that the hypothetical case stated by the majority, that “[a] sober driver who falls asleep, crosses the center line and strikes another car would have no right to refuse to be tested for drug or alcohol abuse,” Majority at 102-103, raises serious constitutional questions. The constitutionality of 75 Pa.C.S. § 1547(a)(2) is not before us and I intimate no view on that issue.

      . 18 Pa.C.S. 2705.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 3732.

      . 18 Pa.C.S. § 2501 and § 2504.

      . 75 Pa.C.S. § 3714.

      . Note, The New Pennsylvania Drunk Driving Law: Last Call for the One-For-The-Road Era, 87 Dick.L.Rev. 805 (1983).


author: PER CURIAM: DEL SOLE, Judge,

text:
    507 A.2d 402
    The SAMS CORPORATION, t/d/b/a Bishop Electric Company v. Nick GARIN and Emma Garin, his wife, Appellants, Pittsburgh National Bank, Garnishee.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed Feb. 12, 1986.
    Reargument Denied April 8, 1986.

      Louis C. Long, Pittsburgh, for appellants.
    Robert L. Campbell, Bridgeville, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   PER CURIAM:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying appellants’ petition to strike or open a confessed judgment. Appellee confessed judgment against appellants on May 17, 1984. Appellants’ petition, which was filed on June 22, 1984, was denied following depositions and oral argument. This appeal ensued.

A petition to open judgment is only granted in limited circumstances. As an appeal to the equitable powers of the court, it rests firmly on the sound discretion of the hearing court and will only be disturbed in the case of a manifest abuse of discretion. First Seneca Bank & Trust Co., v. Laurel Mountain Development Corp., 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984). In seeking to open a confessed judgment, a petitioner must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issue to a jury. Lambakis v. Exar, 340 Pa.Super. 483, 490 A.2d 882 (1985); Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 398, 435 A.2d 1285, 1286 (1981). The moving party has the burden of producing sufficient evidence to substantiate his alleged defenses. See Pa.R.C.P. 2959(e).

Appellee, Bishop Electric Company, performed electrical work for appellants’ business, Pennsylvania Motor Speedway. The resulting alleged indebtedness, $47,000, was secured by a mortgage and a mortgage note. When payment was not forthcoming, appellee confessed judgment against appellants upon the mortgage note; it had already instituted a mortgage foreclosure action. On June 19, 1984, a writ of execution was issued on the confessed judgment and a checking account maintained by Pennsylvania Motor Speedway was garnished on the following day.

Appellants’ petition to strike off or open the judgment and to stay execution averred, among other claims, that appellee was collaterally estopped from proceeding on the confession of judgment in light of its foreclosure action on the mortgage and that the confession of judgment had merged into the complaint of mortgage foreclosure. The lower court refused to open the confessed judgment, holding that appellants had failed to set forth facts supporting a meritorious defense.

In denying appellants’ petition to open the confessed judgment, the lower court observed that the petition merely contained allegations of collateral estoppel and merger of the confession of judgment on the mortgage note and the complaint on mortgage foreclosure. Appellants, although they now argue that they intended to incorporate their defenses to the mortgage foreclosure action, failed to allege with any specificity any facts supporting a meritorious defense.

The court below further held that appellants’ averments of collateral estoppel and merger were inapplicable since the mortgage foreclosure proceeding was an action in rem as opposed to the mortgage note action, which was an action in personam. In reaching this decision, the court relied upon Bank of Pennsylvania v. G/N Enterprises, Inc., 316 Pa.Super. 367, 463 A.2d 4 (1983), wherein we noted that the holder of a bond and mortgage can proceed in rem or in personam to enforce his claim. Since these two proceedings are separate and distinct and not mutually exclusive, appellants’ averments that appellees were collaterally estopped from pursuing their action on the mortgage note in light of the mortgage foreclosure action were rejected by the trial court.

Appellants argue that they averred a meritorious defense in their petition to open by incorporating by reference the defense and counterclaims raised in the related mortgage foreclosure litigation. They contend that the trial court failed to consider the deposition testimony and the pleadings in the mortgage foreclosure action and consequently erred.

Pa.R.C.P. 2959(e) contemplates that the court must consider any testimony, depositions, admissions and other evidence in ruling upon a petition to open. Appellants assert that, considering the depositions and appellants’ answer and counterclaim in the mortgage foreclosure proceeding, sufficient evidence was produced which in a jury trial would require the issues to be submitted to a jury. Appellants thus conclude that the lower court’s singular focus on the allegations of the petition to open constituted an abuse of discretion.

Pa.R.C.P. 1019(g) provides in pertinent part that “[a] party may incorporate by reference any matter of record in any State ... court of record whose records are within the county in which the action is pending____” This rule clearly permits a party to incorporate by reference pleadings duly filed pursuant to another cause of action. Averments incorporated by reference from other pleadings have been held sufficient to support defenses raised in related proceedings. See Genesis Leasing Co., Inc. v. Minchoff, 315 Pa.Super. 437, 462 A.2d 274 (1983). While it is true that Pa.R.C.P. 1019 permits incorporation by reference of certain matters of record, and concededly the rules of civil procedure are to be liberally construed, see Pa.R.C.P. 126, it is unclear from appellants’ petition to open that they intended to accomplish this goal. In their petition, appellants merely stated:

3. At GD 83-21249 the [appellee] had filed an action in mortgage foreclosure against [appellant].
4. [Appellant] has defended this action in mortgage foreclosure, with an Answer, Counterclaim and New Matter.

Nowhere did they explicitly or impliedly incorporate those pleadings into this action in order to rely on their defenses therein. Summary reference to another action is simply inadequate to satisfy the intention of Rule 1019(g), which requires minimal effort to trigger its operation. We agree with the trial court that appellants, in their petition to open, evinced no intent to supplement their pleadings with those filed in the mortgage foreclosure action. It is clear from the face of the petition that, standing alone, the petition to open fails to allege a meritorious defense. We can only conclude that appellants themselves recognize that fact by advancing this incorporation argument. Moreover, mere reference to the mortgage foreclosure action in the deposition of Nick Garin similarly does not serve to incorporate the pleadings into this action.

Finally, our reading of appellant’s petition to open leads us to believe that the references to the related action in this case were actually made to support their collateral estoppel and merger arguments, which have been properly addressed by the trial court and abandoned on this appeal. Finding no manifest abuse of discretion, we will not disturb the decision of the lower court.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent.

The Sams Corporation, t/d/b/a Bishop Electric Company, confessed judgment against the Appellants, Nick and Emma Garin in May, 1984. Bishop Electric had performed electrical work for the Appellants’ business; payment was secured by a mortgage and a mortgage note. When the Appellant failed to pay, Bishop Electric took two actions: first, it instituted a foreclosure action on the mortgage and then proceeded to confess judgment on the mortgage note.

The Garins filed a Petition to Open and/or Strike the confessed judgment. The trial court issued a Rule on the Appellee, who then filed a timely answer. The Appellant’s Petition in paragraphs three and four states as follows:

3. At GD83-21249 the plaintiff had filed an action in mortgage foreclosure against the defendant.
4. Defendant has defended this action in mortgage foreclosure, with an Answer, Counterclaim and New Matter.

The Appellee admits both paragraphs in its answer to the Petition. Deposition testimony was also taken in which the Appellant Nick Garin testified that he had a defense to the foreclosure action.

While I agree with the Majority that the Appellants’ Petition fails to set forth the specific facts of their defense, I would find that the Appellants have introduced their defense into the record by referring to the foreclosure action docket number. The trial court found that the Appellants had raised a defense sufficient to issue a Rule, but did not examine the record at GD83-21249 to determine the merit of that defense. I would vacate the trial court Order and remand the case to the trial court to consider the defense raised by the Appellants in the record of the foreclosure action. After so doing, the trial court may properly decide whether the Appellants’ defense has merit sufficient to grant their Petition to Open.

      . Appellants rely upon Castle View Burial Park, Inc. v. Bell Telephone Co. of Pa., 367 Pa. 289, 80 A.2d 699 (1951), that reference in a complaint to a separate and distinct proceeding is sufficient to incorporate all pleadings relevant thereto. However, therein, the intent of appellant to incorporate pleadings by reference was clear from the face of the complaint and by the fact that he appended particular portions of the record to be made a part of the complaint before the court. Such was not the case herein.


author: CIRILLO, President Judge:

text:
    507 A.2d 406
    Ronald L. KEIRS and Karissa Lynn Keirs, a Minor, by Ronald L. KEIRS, Her Natural Parent and Guardian v. WEBER NATIONAL STORES, INC. and Hatchers Mfg., Inc., a/k/a Hatchers, Beverly, Mass.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1986.
    Filed March 21, 1986.

      Peter M. Suwak, Washington, for appellants.
    Gerald J. Hutton, Pittsburgh, for Weber Nat., appellee.
    John E. Wall, Pittsburgh, for Hatchers Mfg., appellee.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   CIRILLO, President Judge:

Appellant Ronald L. Keirs suffered severe injuries when the jacket he was wearing was doused with a flammable liquid and set ablaze. Taking the position that the double-knit fabric of the coat improperly acted as a “wick”, appellant sued othe manufacturer and seller of the garment, appellees herein, on strict liability and breach of warranty theories. Additionally, plaintiff Karissa Lynn Keirs, daughter of appellant, seeks damages for loss of her father’s consortium. Both appellees filed preliminary objections in the form of demurrers, and the Court of Common Pleas of Washington County sustained the objections. We are now called upon to determine whether the trial court acted properly in so doing.

The trial court aptly noted the standard applicable to consideration of a demurrer, quoting from Bartanus v. Lis, 332 Pa.Super. 48, 52, 480 A.2d 1178, 1180 (1984), wherein we held that:

In considering preliminary objections in the nature of a demurrer, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970). A demurrer admits every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979); Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 37 (1982). The law does not provide a “magic formula” to determine the sufficiency of a plaintiff’s complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt. Hoffman v. Misercordia [sic] Hospital of Philadelphia, supra; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. at 500, 450 A.2d at 38; Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 135, 396 A.2d 677, 681 (1978).

(Emphasis in original). Accord, Fravel v. Suzuki Motor Co., 337 Pa.Super. 97, 486 A.2d 498 (1984). In passing upon such “freedom from doubt”, the trial judge “must screen the adequacy of the plaintiff’s averments in the complaint, somehow employing a cost-benefit analysis to determine the unreasonableness of the design-related risks as a matter of law”. McKay v. Sandmold Systems, 333 Pa.Super. 235, 240, 482 A.2d 260, 263 (1984). With these considerations in mind, it is our task to examine the factual allegations of the complaint to determine whether a valid cause of action has been stated. Fravel v. Suzuki Motor Co., supra.

Appellant first contends that appellees are strictly liable for the injuries incurred. A party is liable under this theory if its product was defective and such defect was the cause of the injury. Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978); Carrecter v. Colson Equipment Co., 346 Pa.Super. 95, 499 A.2d 326 (1985); Burch v. Sears Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). A product is defective if at the time it leaves the supplier’s control it lacks any element needed to make it safe for its intended use. Azzarello, Carrecter, McKay, Burch, supra. In appellant’s view, the jacket was defective because the double-knit fabric absorbed large amounts of liquid, dispersed it evenly over his body, and held the fluid close to his skin, thus causing or at a minimum exacerbating the injuries. In rejecting this contention, the trial court observed that the subject garment was a “typical baseball designed jacket ... for casual wear,” and that appellant “has not averred any fact indicating that the jacket was to be used in an industrial setting or that it was represented to be a fire resistant jacket.” Also, responding to appellant’s particular emphasis on the harm caused by the elastic wristbands, the court found these were simply “intended to provide a better fit and wind breakage.”

Appellant takes exception to these findings on several grounds. First, he maintains that the court’s holding on this point was based on various facts not of record, since appellant’s complaint only described the jacket as having “a fabric body, knitted wristbands and cuffs, and leather sleeves.” However, given this description, we find that as a matter of common knowledge the coat could also be described in the manner chosen by the trial court, i.e., an ordinary baseball jacket. No facts beyond those of record were needed to simply describe the garment another way. The trial court’s observations are clearly of a type allowed by the principle of judicial notice. See Commonwealth v. Mills, 312 Pa.Super. 386, 458 A.2d 1013 (1983) (stating the concept of judicial notice generally before concluding that the court could not take judicial notice of the exact location of a particular road marker). Indeed, appellant averred no special intended use of the jacket, and his implication that such a special use should be one of the “favorable inferences” afforded him as the party against whom the dismissal was sought, Fravel, supra, stretches that rule of pleadings interpretation considerably further than the law allows. It simply does not follow logically that the jacket was intended for a special purpose when the pleadings are utterly silent on that point.

Urging that he has “every legal right in the world to expect clothing to be designed to retard the effects of a burning,” appellant maintains the trial court overlooked the important protective function of clothing generally. He cites cases in which the fire retardancy of certain garments, or more specifically the lack thereof, provided a basis for recovery or at least was found to be a matter for the jury to decide. He also observed that jackets such as the one here at issue are often worn by high school athletes working part-time in gas stations, auto body shops, and other places where sparks and accelerants might be present. Finally, he points to the importance of the jury in making factual determinations.

Mindful of the importance of the jury in our judicial system, we nonetheless agree with the trial court that there was nothing for a jury to decide in this case. Appellant has turned his back to the particular facts of this case and the real issue presented. At issue is not the general fire retardancy of the jacket. The question is whether an ordinary jacket is defective because it allows for severe burns when it is soaked with flammables and set on fire. As posed, the question is almost absurd enough to suggest its own answer. For this reason, appellant places great emphasis on the allegation that the wicklike nature of the double-knit fabric enhanced the injuries. Either way, we can not say a garment is defective because it does not diminish the effect of burns arising in such a dramatically unique manner.

We do not suggest for a moment that clothing should not be designed with an eye toward the possibility that it might catch fire during the course of routine, day to day activities. Indeed, such obligation was generally found in those cases allowing recovery for injuries from clothes that did not adequately retard fire, and the public has been made acutely aware of the increased duty placed upon the makers of babies’ pajamas, to cite just one example. Conversely, a claim such as appellant’s might also be ripe for jury determination if, for example, the injured party is a race car driver or stunt man and the suspect garment was held out to be fire resistant or fire proof.

Here, however, we have an ordinary customer wearing an ordinary, over-the-counter jacket. If the makers and sellers of such common garments must plan for the contingency that their product will be saturated with some volatile substance before coming into contact with fire, we might all be reduced to wearing asbestos clothing. Contrary to appellant’s suggestion, the fact that the wearer may work at a gas station does not mean the jacket will be soaked with gasoline. If the wearer does choose to misuse the product by allowing it to become saturated with an accelerant, it matters little where he is, for it does not change the fact that the jacket was intended only for normal, casual wear. True, the wearer may inadvertantly spill some substance on his jacket and encounter an unforseen source of fire even when excercising the utmost care. However, this possibility cannot support a finding of product defect, for nothing is foolproof.

As appellant himself points out, we must weigh the utility of the product against its potential for harm and the possibility of safer alternatives. Burch v. Sears Roebuck and Co., supra. Given the absorbancy of most fabrics and the relatively remote chance of injuries such as appellant’s, we uphold the trial court’s conclusion that a garment such as appellant’s baseball jacket is not defective for not minimizing the effects of a fire set after the garment was doused with an accelerant.

The trial court also rejected the strict liability claim on the ground that even if there was a defect, the intervening criminal acts of the third party destroyed any causal connection between such defect and the losses suffered. In this regard, the court relied on appellant’s allegation in his complaint that he was “horribly and terribly burned by fire, deliberately set and intensified by the use of accelerants.” Appellant now urges that the trial court read too much into the complaint, for the allegation can only be taken to mean that the fire was deliberate, an accelerant somehow found its way onto the jacket, and then the jacket came in contact with the flame in a manner still unknown, for appellant lost his memory in the trauma of the event. We decline to accept appellant’s carefully crafted word play. If “deliberate” did not refer to the manner in which the flame contacted the jacket, why is it mentioned at all? That is, if appellant is now suggesting he inadvertently backed into the flame, then whether the fire itself was deliberately set would have absolutely nothing to do with the matter. The meaning of the allegation is plain on its face, and we cannot accept appellant’s transparent attempt to change it on appeal. In any event, “causation” refers to the relationship between a defect and some ultimate harm. Since we find no defect here, it necessarily follows that causation cannot exist.

As a corollary, appellant contends appellees should be liable “for manufacturing and marketing a dangerous product without providing a warning not to wear the jacket in the vicinity of petroleum products.” Again, appellant has lost sight of the issue. The jacket is not a “dangerous product” when worn as intended. Indeed, we do not know that it is more dangerous than any other casual jacket when in the vicinity of petroleum products. The jacket was only “dangerous” after it was doused and set aflame. A warning to the effect that “this garment is dangerous if exposed to flame when saturated with accelerants” would be a superflous statement of the obvious, at best.

Appellant also maintains that appellees breached implied warranties of merchantability and fitness for the purpose of general wearing. Appellant cites authority to the effect that warranty questions are generally for the jury to decide. He also posits that the warranties would require the jacket to be flame resistant. To reiterate, however, the fire retardancy of the jacket under normal circumstances need not be considered and for all we know the jacket is safe in this respect. The fact that the jacket was doused with a flammable liquid negates a claim under both warranty theories. 13 Pa.C.S. § 2314 dictates that a product is merchantable if it is fit for its ordinary purpose. There is nothing to indicate that appellant’s jacket was not so fit. Concerning fitness for a particular purpose, 13 Pa.C.S. § 2315 mandates that the seller can only be liable under this theory if he knew of the specific purpose the buyer would make of the product and recommended that particular good for such purpose, with the buyer relying on the seller’s expertise in making that particular choice. Nowhere in the pleadings is there any indication that appellant made known explicitly or implicitly a desire to purchase a fire proof jacket.

Finally, we consider plaintiff Karissa Lynn Keirs’ claim for the loss of her father’s consortium. We observe that at the time of this writing, a child’s right to recover for such alleged loss has not been explicitly recognized in this Commonwealth. Nonetheless, Karissa’s claim is derivative and must therefore fail, for the reason our courts have long espoused in the context of husband and wife consortium claims. We have already concluded that the trial court acted properly in granting appellees’ demurrers; it necessarily follows that since appellees are not liable to appellant Ronald Keirs, they cannot be liable to his daughter for alleged losses stemming from the very same injury. Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971).

The order sustaining the preliminary objections of appel-lees Weber and Hatchers is affirmed.

DEL SOLE, J., concurs in result.