author: WIEAND, Judge:

text:
    482 A.2d 1042
    RITTENHOUSE REGENCY AFFILIATES v. Gloria PASSEN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Oct. 5, 1984.

      Allen L. Feingold, Philadelphia, for appellant.
    Jay S. Ruder, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   OPINION

WIEAND, Judge:

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer to a counterclaim. The counterclaim was filed by a tenant in response to her landlord’s action for accelerated rent which became due when the tenant vacated the apartment prematurely.

Gloria Passen was tenant and Rittenhouse Regency Affiliates, a limited partnership, was lessor under the terms of a written apartment lease having a term of two years. The tenant discontinued the payment of rent when she vacated the apartment at the end of the first year. The lessor thereupon commenced an action in assumpsit to recover the balance of rent due under the terms of the lease. The tenant responded by filing a counterclaim. After preliminary objections thereto had been sustained, the tenant filed an amended counterclaim. She alleged therein that the lessor had failed to return a rental deposit. She also alleged that the lessor had intentionally inflicted emotional distress by refusing to abide by an oral agreement to accept an alternate tenant if one were found by appellant-lessee. For breach of this oral agreement, Passen demanded compensatory and punitive damages.

The trial court properly observed that a tenant cannot maintain a cause of action for punitive damages or for compensatory damages because of emotional distress allegedly caused by a lessor’s failure to abide by the terms of an oral agreement. As a general rule, punitive damages are not recoverable in an action for breach of contract. Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 107, 454 A.2d 39, 44 (1982); Daniel Adams Associates, Inc. v. Rimbach Publishing Inc., 287 Pa.Super. 74, 77, 429 A.2d 726, 728 (1981); DeLuca v. Fidelity Bank, 282 Pa.Super. 365, 368, 422 A.2d 1159, 1161 (1980). Similarly, damages for emotional distress are not ordinarily allowed in actions for breach of contract. There are only two exceptions. The first is where the emotional distress accompanies bodily injury. This usually takes the form of an action in tort. The second exception occurs where the breach is of such a type that serious emotional disturbance is a particularly likely result. Restatement (Second) of Contracts § 353 (1981). See: Carpel v. Saget Studios, Inc., 326 F.Supp. 1331, 1334 (E.D.Pa. 1971); Emerman v. Baldwin, 186 Pa.Super. 561, 572, 142 A.2d 440, 447 (1958). See also: Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250 (1956). The counterclaim in the instant case does not contain even a whisper of bodily harm. The oral agreement alleged, moreover, was not one whose breach is recognized as being particularly likely to cause emotional distress.

The Restatement (Second) of Torts § 46(1) (1965) provides that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. . . .” Id. Although it is recognized that in certain cases a breach of contract can be tortious, Fair v. Negley, 257 Pa.Super. 50, 390 A.2d 240 (1978); Beasley v. Freedman, 256 Pa.Super. 208, 389 A.2d 1087 (1978), the essence of such a tort must be extreme and outrageous conduct. “Liability has been found only where- the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Martin v. Little, Brown and Co., 304 Pa.Super. 424, 432, 450 A.2d 984, 988 (1981), quoting Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976) (quoting from Restatement (Second) of Torts § 46, Comment d). Accord: Rose v. Wissinger, 294 Pa.Super. 265, 274, 439 A.2d 1193, 1198 (1982).

The tenant averred in the instant counterclaim that the lessor had refused to lease the apartment to prospective tenants obtained by appellant “solely with the desire of increasing the amount of rental in direct violation of the agreements entered into with the [appellant] herein.” (emphasis added). This was a simple breach of contract; it was not a tort. It was not extreme or outrageous conduct sufficient to exceed the bounds of decency so as to render the lessor liable for emotional distress. Appellant’s remedy, if the lessor breached a separate oral agreement regarding occupancy of the apartment, is limited to those damages which are traditionally awarded in breach of contract actions. Therefore, the trial court could properly dismiss the tenant’s counterclaim for emotional distress and punitive damages.

However, the tenant was entitled to allege in her counterclaim a set-off for any rental deposit made upon execution of the lease and not forfeited during occupancy of the apartment. Even though this portion of the counterclaim was not pleaded with specificity, the claim appears clearly in the counterclaim. It was adequate to prevent a total dismissal of appellant’s counterclaim.

The order sustaining preliminary objections in the nature of a demurrer to appellant’s counterclaim is reversed. The action is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . Common examples, according to the Restatement, are “contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death." Restatement (Second) of Torts § 353, comment a.


source: Caselaw Access Project

license: Public Domain

text:
    482 A.2d 1044
    COMMONWEALTH of Pennsylvania v. Edward IGNATAVICH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied April 21, 1985.

      Basil G. Russin, Chief Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   OPINION

WIEAND, Judge:

Edward Ignatavich was tried by jury and was found guilty of murder in the third degree as a result of the stabbing death of Peter Gliem during an altercation in Hazleton, Luzerne County, on November 5, 1981. On direct appeal from the judgment of sentence, Ignatavich complains (1) that the evidence was insufficient to show a killing with malice; (2) that the Commonwealth failed to provide him with information of an earlier arrest of the victim for assault and that the trial court erred when it refused to allow evidence of such arrest; (3) that the trial court failed to instruct the jury fully and accurately on self-defense; (4) that the trial court erred in charging the jury on flight and concealment; and (5) that the sentence was excessive. We find no merit in these contentions and, therefore, will affirm the judgment of sentence.

The altercation which resulted in Peter Gliem’s death occurred outside Gliem’s home after he had completed a trash collection route and was parking his truck. Larry Koslop drove up in a station wagon, jumped out and engaged Peter Gliem in an argument regarding a prior disagreement. An altercation ensued in which Koslop was knocked to the ground and beaten. Ignatavich, who had been seated in Koslop’s car, emerged from the vehicle with a knife which he then used to attack Peter Gliem and stab him in the chest. The altercation occurred in the presence of members of the Gliem family, whose versions of the altercation varied substantially from Ignatavich’s recollection. These differing versions have been fully stated and reviewed in the opinion prepared by the trial court and will not be repeated here. Suffice it to say that there was evidence which, if believed, showed that Peter Gliem had been unarmed at the time Ignatavich attacked him with a knife. After the altercation, Ignatavich helped the beaten Koslop into the car, refused requests to help Peter Gliem, and drove away. He concealed himself in nearby woodland before surrendering himself to police on the following day. Gliem died from loss of blood caused when Ignatavich’s knife pierced his heart.

The defense version was that Ignatavich had drawn a knife to protect himself only after Peter Gliem had subdued Koslop and approached Ignatavich in a combatant manner wielding a tire iron. Fearing that he, too, would be beaten, Ignatavich contended, he drew the knife and used it solely to defend himself. The credibility of this testimony, of course, was for the jury, which could believe all, some or none of it. See: Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983). The version testified to by Commonwealth witnesses demonstrated, if believed, that the killing of Peter Gliem had been malicious and unjustified by any need on the part of Ignatavich to protect himself against an unarmed assailant.

More than fifteen months prior to the stabbing, Peter Gliem had been arrested for assaulting Samuel Touch while he sat in a car. The charges were dropped, however, after Gliem agreed to pay Touch’s medical expenses. Ignatavich contends that he is entitled to a new trial because the Commonwealth failed to disclose this arrest in response to a pre-trial discovery request for exculpatory evidence and also because the trial court denied a defense offer at trial to prove the circumstances of Gliem’s prior arrest. We disagree.

It is immediately apparent that the Commonwealth’s failure to disclose the victim’s prior arrest for assault was harmless. The defense had the necessary information in its possession and was prepared to prove the same at trial. The pre-trial request for discovery, moreover, had been a general request for exculpatory evidence and not a specific request for the criminal record of the deceased. The Commonwealth had no affirmative duty to search for evidence that might have been supportive of a defense for the accused. Commonwealth v. Bridge, 495 Pa. 568, 580, 435 A.2d 151, 157 (1981). “[W]here only a general request is made, the Commonwealth has the burden of providing the defense with evidence which is material.” Commonwealth v. Rose, 483 Pa. 382, 396, 396 A.2d 1221, 1228 (1979). In this context, material evidence includes only such evidence which is exculpatory because it establishes or tends to establish the defendant’s innocence of the charge for which he is being tried.

The evidence of the deceased victim’s prior arrest for assault was, under the circumstances of this case, irrelevant and immaterial. Where a defendant offers to prove that he acted in self-defense, “he may use his deceased victim’s criminal record either (1) to corroborate his alleged knowledge of the victim’s quarrelsome and violent character to show that the defendant reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor.” Commonwealth v. Amos, 445 Pa. 297, 303, 284 A.2d 748, 751 (1971) (footnote omitted). Where offered “merely ‘to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor,’ ” mere arrests, without convictions, are inadmissible. Commonwealth v. Darby, 473 Pa. 109, 113, 373 A.2d 1073, 1074 (1977). See also: Commonwealth v. Smith, 490 Pa. 380, 386, 416 A.2d 986, 989 (1980). Specific acts of violence by the victim may be offered only “to corroborate the defendant’s knowledge of the victim’s ... violent character, all to the end of establishing that the defendant reasonably believed that his life was in danger.” Commonwealth v. Stewart, 483 Pa. 176, 182, 394 A.2d 968, 971 (1978). In the instant case, appellant conceded that he did not know Gliem prior to the altercation and, therefore, was ignorant of Gliem’s alleged reputation for violence and of the specific acts which had led to Gliem’s prior arrest. Under these circumstances, the trial court ruled, correctly we hold, that Gliem’s prior arrest for assault and the specific facts giving rise thereto were irrelevant and inadmissible.

In his statement of “questions involved,” appellant asks “[d]id the [trial] court err in not allowing appellant’s points for charge.” Appellant’s argument offers no greater specificity than his statement of the question. Such an averment of error is too general to preserve for appellate review a specific point for charge submitted to the trial court. See: Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Moreover, appellant did not take exception to the trial court’s failure to instruct the jury as requested in appellant’s several points for charge. “[I]n order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R.Crim.P. 1119(b), even where jury instructions have been timely offered and refused.” Commonwealth v. Russell, 326 Pa.Super. 346, 353, 473 A.2d 1383, 1386 (1984), quoting Commonwealth v. Rineer, 310 Pa.Super. 241, 249, 456 A.2d 591, 595 (1983). See also: Commonwealth v. Olds, 322 Pa.Super. 442, 452, 469 A.2d 1072, 1077 (1983). The court’s failure to charge specifically as requested by appellant, therefore, was waived.

The trial court instructed the jury fully, accurately, and clearly on the issue of self-defense. The court was free to select its own form of expression and was not required to accept the language requested by counsel. Commonwealth v. Melendez, 326 Pa.Super. 531, 539, 474 A.2d 617, 620-621 (1984); Commonwealth v. Newman, 323 Pa.Super. 394, 402, 470 A.2d 976, 980 (1984); Commonwealth v. Hayes, 314 Pa.Super. 112, 118, 460 A.2d 791, 794 (1983).

After the court had completed its jury instructions but before the jury had retired to deliberate, appellant requested the court to supplement its instructions regarding third degree murder by telling the jury that the killing would be without malice if the killer acted with lawful justification or excuse or under circumstances reducing the killing to manslaughter. The court responded to this request by reviewing fully the elements essential to a finding of third degree murder. Appellant complains that this response by the court placed undue emphasis on third degree murder. However, appellant took no exception to the court’s supplemental instructions and, therefore, has waived any complaint with respect thereto. Commonwealth v. Russell, supra. Appellant’s contention, moreover, is patently lacking in merit. A jury charge must be read as a whole and considered in its entirety. It is the general effect of the charge that controls. Commonwealth v. Stanton, 316 Pa.Super. 397, 402, 463 A.2d 19, 21 (1983). There was no error in the court’s instructions on third degree murder; they were thorough and complete. It was the judgment of the court, whose duty it was to clarify the issues, Commonwealth v. Newman, supra 323 Pa.Super. at 402, 470 A.2d at 980, that an entirely new charge would be more effective. We perceive neither error nor prejudice in this decision.

The court also instructed the jury as follows:

Even though [] the evidence indicates that Peter Gliem may have used force against the Defendant, you may find the Defendant guilty if you are satisfied beyond a reasonable doubt that he used deadly force ... after provoking Peter Gliem to use force against him at the same time and place with the intent to inflict death or serious bodily injury.

(N.T. 373). Appellant argues that this instruction was improper because there was no evidence to support a finding that appellant had provoked an attack by Gliem. When it is recalled that the credibility and weight of the evidence were for the jury, which could believe some, all or none of the testimony of each witness, it was not error to instruct the jury on provocation by appellant.

Similarly, the trial court did not err when it instructed the jury that an inference of consciousness of guilt could be drawn from the fact that appellant had fled after stabbing the victim and had concealed himself in the woods for a day before surrendering to police. Although appellant explained that he was fearful of retaliation by members of the Gliem family, this explanation did not remove the propriety of an instruction regarding flight and concealment. Appellant’s conduct following the stabbing, together with appellant’s explanation therefor, were properly submitted to the jury upon appropriate instructions by the court.

Finally, appellant contends that a sentence of ten to twenty years in prison was manifestly excessive. “As a general rule, the imposition of a sentence is within the sound discretion of the sentencing court.” Commonwealth v. Gordon, 329 Pa.Super. 42, 57, 477 A.2d 1342, 1349 (1984). “[U]nless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court’s determination will not be disturbed.” Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983). There was no abuse of discretion in imposing a ten to twenty year sentence of imprisonment for murder in the' third degree in this case. Although appellant had only one prior conviction for assault, he was an admitted alcoholic and a repeat violator of the statute proscribing public drunkenness. The sentencing court specifically considered and rejected the option of probation. It also considered “the nature and gravity of the offense,” which the court regarded as a “senseless” and “unnecessary murder.” Appellant’s prior lifestyle had been aimless, opined the court, and suggested a need for rehabilitation best provided by incarceration. The sentencing court was also concerned that the needs of society be served by a sentence that deterred senseless killing. The court properly considered the particular circumstance of the offense and the character and background of the defendant. See: Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984). There was no abuse of discretion.

Judgment of sentence affirmed.

      . Gliem also had a prior arrest for slashing automobile tires. This is so clearly irrelevant to the homicide charge against Ignatavich as to require no further discussion.

      . Appellant has not challenged either in his petition to modify sentence or on appeal to this Court the sentencing court’s order to make restitution of $2,741.85 to the decedent’s family for funeral and medical bills.


author: OLSZEWSKI, Judge:

text:
    482 A.2d 1049
    John J. CIANFRANI and Mary D. Cianfrani, H/W, Appellants, v. JOHNS-MANVILLE CORPORATION; Johns-Manville Sales Corporation; Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corporation; Forty-Eight Insulation, Inc.; Nicolet Industries, Inc.; Pittsburgh Corning Corporation; GAF Corporation; Celotex Corporation; Armstrong Cork Corporation; Unarco Industries, Inc.; H.K. Porter, Inc.; Southern Asbestos Company; J.P. Stevens, Inc.; Eagle-Picher Industries, Inc.; Delaware Asbestos & Rubber Co.; Pacor, Inc.; Fibreboard Corporation; Keene Corporation, Amatex Corporation, Garlock, Inc.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied March 4, 1985.

      Marc P. Weingarten, Philadelphia, for appellants.
    Joseph W. McGuire, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OPINION

OLSZEWSKI, Judge:

This appeal follows the entry of summary judgment, due to expiration of the statute of limitations, against appellant’s action for damages resulting from asbestos exposure.

Appellants filed a complaint in trespass and assumpsit in 1977, alleging damages arising from Mr. Cianfrani’s exposure to asbestos while a pipefitter at the Philadelphia Naval Shipyard. The complaint named Johns-Manville Corporation and numerous other defendants, all engaged in the manufacture or supply of asbestos products. Further, the complaint alleged that Mr. Cianfrani came in contact with asbestos as he worked on ships both in dry dock and on the navigable waters of the United States.

Appellees answered the complaint and filed motions for summary judgment alleging that appellants were barred from bringing their action by the applicable statute of limitations. 42 Pa.C.S. § 5524(2)(1976). By Opinion and Order of July 13, 1979, the motions of several defendants were granted. On October 31, 1979 and December 6, 1979, the motions of the remaining defendants were granted. The three orders are consolidated, upon appellants’ petition, before this court.

Two issues are raised before us. First, appellant argues that the lower court erred in granting summary judgment, finding no genuine issue of material fact as to when Mr. Cianfrani discovered his injury. We disagree.

A ruling on a motion for summary judgment “shall be rendered if the pleadings, depositions, answers »to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P., Rule 1035(b), 42 Pa.C.S. On appeal, the Superior Court need only determine whether there is a genuine issue of triable fact. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982).

Appellants argue that there exists a genuine issue as to when he discovered that he had an actionable claim, asserting that he did not discover the operative cause of his injury until 1977. The lower court found that by October, 1973 Mr. Cianfrani knew he had asbestosis, knew that the operative cause of the injury was inhalation of asbestos dust and fibres, and knew the causal connection between his injury and his exposure to asbestos at work. Under the lower court’s analysis, the statute of limitations had run by October, 1975. Lower court opinion at 8.

We agree with the lower court’s analysis. Further, summary judgment was properly granted under the discovery rule enunciated in our recent decision in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). In Cathcart we simplified our analysis of the discovery rule in “creeping disease” cases by holding that the statute of limitations begins to run when the plaintiff knows, or reasonably should know, that he has been injured and that his injury has been caused by another party’s conduct.

Appellants’ claim is barred by the statute of limitations under both the Cathcart test and the test applied by the lower court. The court below found as fact that Mr. Cianfrani’s affliction was first noted as “asbestos exposure” in a July 25, 1973 x-ray report by a Philadelphia Naval Shipyard Dispensary doctor. Mr. Cianfrani’s personal physician informed him on August 14, 1973 that “something” on his lung was caused by asbestos dust. By letter dated October 11, 1973, a pulmonary specialist reported that Mr. Cianfrani suffered from pulmonary asbestosis with pleural involvement. Mr. Cianfrani was informed of this diagnosis. Further, in answer to an interrogatory, Mr. Cianfrani admitted that he was “advised of asbestosis” in August, 1973. Finally, on August 27, 1973, Mr. Cianfrani filed a “Federal Employees Notice of Injury and Occupational Disease” report, in which he described his injury as “asbestosis” caused by “working around asbestos.” Lower court opinion at 5-6. There is no material issue of fact whether, in October, 1973, Mr. Cianfrani knew of his injury, the cause of his injury, and the relationship of his injury to his employment. The statute of limitations ran by October, 1975, two years before summary judgment was properly granted.

Appellants’ second argument is that the lower court erred in refusing to apply admiralty law and the doctrine of laches. We hold that admiralty law is inapplicable to the facts of this case.

In Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983), this court held that admiralty jurisdiction did not lie for a civilian welder who contracted asbestosis in the course of his work at the Philadelphia Naval Shipyard. We applied the two-pronged test defined by Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) and found that the welder who worked on ships in dry dock and on navigable waters satisfied the locality requirement of the test; nevertheless, welding was not found to be a traditional maritime activity requiring the special solicitudes of admiralty law. In the instant case, appellants have advanced no arguments to distinguish Mr. Cianfrani, as a navy yard pipefitter, from a navy yard welder. Neither worker faced a peril created by any hazard of the sea. See 323 Pa.Super. at 140-141, 470 A.2d at 168.

Appellants argue that our court is bound by the decision in White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). This assertion is simply wrong. In the absence of a ruling on the question by the United States Supreme Court, the decision of a federal intermediate appellate panel is not binding on Pennsylvania courts. Breckline v. Metropolitan Life Insurance Co., 406 Pa. 573, 178 A.2d 748 (1962). Indeed, Volpe explicitly declined to follow the Fourth Circuit in White, and instead was guided by the First and Ninth Circuit Courts of Appeals denying admiralty jurisdiction. 323 Pa.Super. at 135-136, 470 A.2d at 167, citing Austin v. Unarco, 705 F.2d 1 (1st Cir.1983) and Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983).

The Orders are affirmed.

POPOVICH, J., concurs in the result.

      . The court viewed the test as more workable than rules relied on in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983) and Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 683 (1982).

      . See Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (1980).


text:
    482 A.2d 1051
    GENERAL ACCIDENT INSURANCE COMPANY, Appellant, v. George ST. PETER, John St. Peter, and Colleen Shuttleworth.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied Jan. 22, 1985.

      Roger J. Harrington, Philadelphia, for appellant.
    Neal E. Newman, Philadelphia, for Peter, appellees. Mark C. Jacob, Philadelphia, for Shuttleworth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OPINION

OLSZEWSKI, Judge:

This is an appeal from an order of the lower court refusing to vacate or modify an arbitration award which allowed stacking of uninsured motorist benefits. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

On April 6, 1979, Jean Marie Bane was operating an automobile owned by her father, James J. Bane, when she was forced off the road by an unidentified phantom vehicle. This incident caused her to lose, control of her automobile and collide broadside with a utility pole.

As a result of the impact, John St. Peter, Colleen Shuttle-worth and George St. Peter (appellees), passengers in the Bane’s automobile, were seriously injured. All three filed actions claiming uninsured motorist coverage against General Acceptance Insurance Company (appellant), the motor vehicle insurer for the Bane’s automobile.

The insurance policy in question was a single policy, covering not only the vehicle damaged in the accident, but also two separate vehicles. The policy provided for a maximum of $30,000 uninsured motorist benefits which would be paid, per vehicle, for any injuries sustained in an accident. To obtain this coverage, Mr. Banes paid a separate premium for each of his three automobiles.

On November 17, 1982, appellees’ uninsured motorist claims proceeded to arbitration pursuant to the arbitration clause contained in the Bane’s policy. A majority of the panel of arbitrators, determining that “stacking” of benefits under the three coverages issued was expressly authorized under the provisions of the policy, awarded a total of $90,000 to appellees as follows: (a) John St. Peter — $50,-000; (b) George St. Peter — $25,000; and, (c) Colleen Shuttle-worth — $15,000.

Appellant, arguing that the arbitrator’s decision was contrary to law, filed a petition in the Philadelphia Court of Common Pleas, seeking to vacate or modify the award. That court, per Alfred J. DiBona, J., affirmed the arbitrator’s award on the theory that stacking was clearly authorized under the then current case law. This appeal followed in which appellant argues that appellees, as guest passengers, do not possess the requisite contractual relationship with an unrelated insurer to entitle them to the privilege of “stacking”.

I.

Throughout the last two decades, Pennsylvania courts have continually struggled with the issue of whether or not stacking of insurance benefits should be permitted in this Commonwealth. See Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) (generally speaking, stacking permitted); Blocker v. Aetna Casualty & Surety Co., 232 Pa.Super. 111, 332 A.2d 476 (1975) (injured passenger allowed to stack under terms of ambiguous policy); Marchese v. Aetna Casualty & Surety Co., 284 Pa.Super. 579, 426 A.2d 646 (1981) (stacking permitted under a “garage policy” of insurance issued by defendant to plaintiffs employer); but see State Farm Mutual Auto Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978) (stacking only permitted if claimant can meet certain criteria); Sones v. Aetna Casualty & Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979) (special relationship of spouse, to insured justified multiple recoveries); Provident Insurance Company v. Rosata, 7 Phila. 478 (1982) (passenger in vehicle not allowed to stack uninsured benefits due to lack of any special contractual relationship to insurer); Flamine v. General Accident, 69 Del. 605 (1982) (stacking denied because claimant displayed no reasonable expectation of multiple recoveries from unrelated insurer).

As the cited authority illustrates, our courts have failed to settle upon a set of rules or guidelines which can be consistently and coherently applied in this area of the law. Nonetheless, it seems safe to conclude from the above, that the general trend has favored expanding the concept of stacking, at least where the claimant either: (1) has paid the actual insurance premiums, or (2) stands in a special relationship to that of the insured. See State Farm Mutual Insurance Co. v. Williams, supra; Sones v. Aetna Casualty & Surety Insurance Co., supra.

Recently however our Supreme Court has deviated from this general course by limiting the “class” of claimants that are entitled to this extremely advantageous privilege of stacking. Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984).

The facts in Utica indicate that decedent, an employee operating a vehicle insured under a fleet policy by his employer, was killed when struck by another vehicle driven by an uninsured motorist. The executor of decedent’s estate filed a claim with the employer’s insurer in which he sought to stack uninsured benefits under all 15 vehicles covered under the employer’s policy.

In a well written opinion, our high court, after carefully categorizing claimants into one of three uninsured motorist classes, held that decedent, a person who was insured only because of his “temporary status as occupant of a vehicle insured by another”, was a class II claimant not entitled to stack coverage.

In disallowing the multiple recovery, the court reasoned that a claimant who falls within a class that has not paid premiums and has not been specifically mentioned as an intended beneficiary under a policy, has no recognizable contractual relationship with the insurer, and therefore no reasonable expectation of multiple recoveries.

Here, appellees, as passengers in the Bane’s automobile, did not pay premiums and were not specifically mentioned as intended beneficiaries under the Bane’s policy. They therefore fell within the category of “class II” claimants designated under the principles set forth in Utica. Being class II claimants, their “temporary status” as passengers of the vehicle, together with their lack of contractual relationship with General Acceptance (appellant), deprived them of any right to stack the uninsured motorist benefits applicable to Mr. Bane’s other two vehicles. See Utica Mutual Insurance Co. v. Contrisciane, supra.

Appellees attempt to distinguish Utica by arguing that there stacking was sought under a commercial fleet policy, whereas here, stacking is sought under a private individual’s policy. We do not find this technical distinction persuasive. Furthermore, we do not think that our Supreme Court would have any difficulty in rejecting this distinction when in both instances there is just no recognizable contractual relationship with the insurer which entitles a mere passenger or a mere occupant of a vehicle, to a reasonable expectation of multiple recoveries.

Based upon the above, we therefore hold that the lower court erred in allowing appellees to stack the uninsured benefits under the Bane’s policy.

II.

Before concluding, we want to emphasize that we are not unmindful of the tendency of our courts to expand the concept of stacking in order to allow increasingly liberal rights of recoveries under the Uninsured Motorist Act. Nonetheless, to permit appellees to stack coverage in this case would be to disregard altogether the Utica requirement that a claimant stand in some sort of contractual relationship to the multiple coverages whose benefits are being sought. This we decline to do.

In light of the above, the order of the lower court is hereby reversed, and the matter remanded for further proceedings, consistent with this opinion, to determine the extent of uninsured motorist coverage benefits owed to each appellee.

Order reversed and case remanded; jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . Our power to review the arbitrator’s award is derived from 42 Pa.C.S. Sec. 7302(d)(2). That section provides that an arbitration award which is contrary to law can be modified or corrected by a court of law.

      . A fourth passenger injured in the mishap chose not to participate in any of these proceedings.

      . The subject policy also contained the standard provision approved for use by the Pennsylvania Insurance Commissioner, which specifically provides the following with regard to "persons covered” under the uninsured motorist clause:
      Covered persons ... means:

        (1) you or any family member,
      (2) any other person occupying your covered auto,
      (3) any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1 or 2 above.

      . Apparently, the panel awarded the full $30,000 for each of the three vehicles insured. The amount each appellee received was then ascertained by reference to the extent of his or her injury suffered.

      . The lower court’s decision to allow stacking was based primarily on the case of Blocker v. Aetna Casualty & Surety Co., 232 Pa.Super. 111, 332 A.2d 476 (1975), where a guest passenger involved in an accident was allowed to stack universal motorist benefits under the applicable policy. We note however that Blocker was decided long before Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) — the case our instant holding is premised upon.

      . In Utica, the court derived the 3 classes of uninsured motorist claimants from the particular provisions of the insured’s policy. That provision, which has become almost standard throughout the insurance industry and was strikingly similar to the provision in the instant case (see footnote 3), provided that uninsured benefits were payable to, "... (a) the named insured and any designated insured (class I); (b) any other person while occupying an insured highway vehicle (class II), and (c) any person with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above (class III).

      . The court was careful to point out that stacking is not precluded in all situations. To the contrary, the court’s holding in Utica merely limits stacking in one specific, but broad category — that is, where the claimant’s status is classified as temporary and he or she has no recognizable contractual relationship with that of the insurer.

      . Indeed, other jurisdictions have refused to allow passengers the right to stack such benefits. See, for example, Lambert v. Liberty Mutual Insurance Company,
        331 So.2d 260 (Ala. 1976) (passenger injured in third party vehicle not allowed to stack uninsured benefits).

      . Similarly, appellees contend that Utica should be limited exclusively to situations when the claimant is categorized as an "occupant” of a third party vehicle. In this respect, appellees argue that “occupants" and "passengers” of third party vehicles are two completely different categories of individuals that should be treated accordingly. We reject this argument because we feel that “occupants" and "passengers” are synonymous and interchangeable terms.

      . Our research has also revealed that several other jurisdictions have denied stacking in situations very similar to the case at bar. For example, see Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976) (passenger not allowed to stack); Cunningham v. Insurance Company of North America, et al, 213 Va. 72, 189 S.E.2d 832 (1972) (police officer not allowed to stack uninsured benefits under city’s fleet policy). We find the logic and reasoning behind these cases to be very impressive.


author:
DEL SOLE, Judge:
      SPAETH, President Judge,

text:
    482 A.2d 1055
    Louise M. DUNN, Administratrix of the Estate of Joseph V. Dunn, Jr., Deceased, Appellant, v. UNITED INSURANCE COMPANY OF AMERICA and Harry Fleisher and William Formwalt.
    Superior Court of Pennsylvania.
    Submitted Jan. 3, 1984.
    Filed Oct. 5, 1984.

      Louis Kattelman, Philadelphia, for appellant.
    David H. Trushel, Pittsburgh, for appellees.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   OPINION

DEL SOLE, Judge:

Joseph V. Dunn, Jr., prior to the time of his death, was employed by the Defendant, United Insurance Company of America (hereinafter “United”). On June 23, 1979, he sustained a heart attack from which he was recovering. On September 28, 1979, United, acting through either or both Harry Fleisher and William Formwalt, co-employees, contacted Mr. Dunn at his home and advised him that his position of employment with the Defendant was to be changed and requested that he attend a meeting on October 2, 1979, in the offices of United. Plaintiffs Decedent did attend that meeting and during the course thereof suffered a fatal heart attack. On October 22, 1979, Louise M. Dunn, wife of deceased, filed a Fatal Claim Petition with the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Worker’s Compensation. The matter was referred to Peter E. Perry, Jr., Referee, Philadelphia District, various hearings were held and subsequently, the parties entered into a stipulation of facts which were adopted by the Referee. On May 21, 1980, the Referee entered an Order directing that the Defendant in the compensation proceeding (United) pay compensation to the Claimant (Louise M. Dunn, widow of Joseph Dunn, deceased) and specifically found that the death of the Decedent was a work-related injury as defined by Section 301(c)(1) of the Pennsylvania Worker’s Compensation Act as amended. From the Order of the Referee, no appeal was taken.

Louise M. Dunn, in her capacity as Administratrix of the Estate of Joseph V. Dunn, Jr., deceased, filed this suit on September 24, 1980, in the Court of Common Pleas of Philadelphia County claiming damages against United, Fleisher and Formwalt for personal injuries as a result of the death of her husband, Joseph V. Dunn, alleging that the death was a result of wrongful, unjust and unlawful provocation and that the Defendants willfully conspired to deprive the Plaintiff of his position of employment. The Defendants filed an Answer and New Matter raising the defense of the Worker’s Compensation Act.

The Defendant, United, next filed a Motion for Summary Judgment and in the reply thereto it was admitted that the Plaintiff had received Worker’s Compensation benefits pursuant to the Order of Referee Perry. The trial court granted United’s Motion for Summary Judgment and this appeal follows.

The Plaintiff argues that this matter is controlled by the case of Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695, which held that where an injury to an employee occurs as a result of personal hatred or animosity and is not compensable, then the employee is not barred from suing his employer for damages. However, the Plaintiffs reliance on the Gillespie case, supra, is misplaced. Specifically, the court stated in Gillespie as follows:

“Though, we find a cause of action stated against both defendants, we are foreclosed, by the record from giving the lower court definitive guidance. The record is somewhat contradictory and incomplete as to what action was taken pursuant to the [Worker’s Compensation Act] ... We are unable, from the state of the record, to determine whether Gillespie is barred by any agreement, from proceeding in tort against Transport. Nor is the record dispositive as to whether appellant and/or defenses by their failure to appeal rulings concerning a workman’s compensation claim ...
When an injury had been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer.”

The Gillespie court was confronted with the situation wherein it was unclear on the record whether there was compensation paid for a compensable injury pursuant to the Act. However, 77 P.S. § 481(a), which states in pertinent part as follows:

“(a) The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependants, next of kin or any one otherwise on account of any injury or occupational disease as defined in § 108.” (Emphasis added),

bars any claim for personal injury in a third-party action against an employer for injuries that are compensable.

In the instant case, the Referee found that the Decedent’s injury was compensable under § 301(c)(1) of the Act. No appeal was taken, therefore, the Referee’s finding is a final determination of the issue of compensability. Section 481 as quoted herein, makes the compensation award the exclusive remedy against the employer in this case and the Plaintiff is not entitled to redress in this forum against the employer.

The dissent cites Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388, 421 A.2d 251, 254 (1980); Gillespie v. Vecenie, 292 Pa.Super. 11, 15, 436 A.2d 695 (1981) and Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) in support of its position of reversal of the trial court.

The dissent’s reliance upon these three decisions is misplaced. First, in none of the cited cases was there a finding by a competent tribunal that the injury received by the plaintiff was, in fact, compensable. In the instant case, such a finding was made which the dissent neglects to discuss.

Further, Mike, supra, was a case that arose prior to the 1974 amendment to the Compensation Act upon which this decision relies. In addition, Gillespie, specifically states that the record is unclear with regard to a determination of compensability and, therefore, the matter should proceed at the trial level and, Scantlin, supra, was an affirmance of a judgment on the pleadings wherein the plaintiff pled injury as a result of a noncompensable action by the employer and this Court sustained the decision of the trial court in dismissing the complaint because the plaintiff did not aver that his injury was intentional and a product of personal animosity.

In the instant case, there having been a finding by a competent tribunal of compensability the claim against the employer is barred.

Thus, we will affirm the decision of the trial court on United’s Motion for Summary Judgment.

Judgment affirmed.

Jurisdiction relinquished.

SPAETH, President Judge, filed a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority that summary judgment was proper in this case. While appellant’s complaint is inartfully pleaded, the cause of action she intended to plead sufficiently appears. Since, contrary to the majority, this cause of action is not barred, we should reverse and remand with leave to appellant to amend her complaint.

1

The purpose of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., is to compensate employees for on-the-job injuries. As the Supreme Court has said:

By virtue of the ... Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.
Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956).

Consistent with this purpose, under the Act

“injury arising in the course of his employment” ... [does] not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him.

77 P.S. § 411(1).

Thus, as we have said, “an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee” is specifically excluded from the Act’s coverage. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388, 421 A.2d 251, 254 (1980).

The question we must decide, therefore, is whether appellant has pleaded that her husband died as a result of “an injury caused by an act of a third person intended to injure [him].” 77 P.S. § 411(1). Appellant’s complaint may be summarized as follows. Appellant’s husband was at home recovering from a heart attack when, on or about September 28, 1979, defendant Fleisher telephoned him and told him that he was being demoted and would have to attend a meeting on October 2, 1979, at the offices of her husband’s employer, defendant United (appellee here). Complaint ¶ 3. During the meeting appellant’s husband suffered a fatal heart attack. Id. ¶ 4. United, “without cause or a provocation, unlawfully, wrongfully, unjustly, and wilfully conspired” with Fleisher and defendant Formwalt against appellant’s husband “to deprive him of his position of employment with [United].” Id. ¶ 3. Fleisher had telephoned her husband “in furtherance of the conspiracy”, id. ¶ 3, and appellant’s husband’s heart attack was “the result of [Fleisher’s, Formwalt’s and United’s] unlawful, wrongful, unjust and wilful acts,” id. ¶ 4.

As it stands, appellant’s complaint does not allege that the acts of Fleisher and Formwalt, in which United is claimed to have conspired, were motivated by “personal animosity against the employee.” See Mike v. Borough of Aliquippa, supra. Compare, Gillespie v. Vecenie, 292 Pa.Super. 11, 15, 436 A.2d 695, 697 (1981) (third amended complaint alleged “pure personal hatred toward the plaintiff ...,” “personal animosity ... in no way resulted [sic] out of a relationship between an employer and an employee ...”), with Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) (complaint dismissed; personal reasons not alleged). Nevertheless, appellant’s reply to the motion for summary judgment made appellant’s theory of recovery sufficiently clear, for it alleged that “there may be a common law recovery in tort against the employer where injury caused by an act of a third person intended to injure the employee because of reasons personal to him is present.” Reply to Motion for Summary Judgment, ¶ 7. While this was procedurally improper, since this statement disclosed the cause of action that appellant intended to plead, the trial court should have given appellant the opportunity to amend her complaint, if she could, to conform it to the statement. In cases in which preliminary objections have been sustained because the complaint is defective in failing to state a claim, and it is evident that the pleading can be cured by amendment, we have held that final judgment may not be rendered before the plaintiff is given the opportunity to amend the complaint. Mott v. Sewickley Savings & Loan Association, 211 Pa.Super. 357, 236 A.2d 541 (1967); United Mercantile Agencies, Inc. v. Slotsky, 107 Pa.Super. 467, 164 A. 349 (1933). See also Stevens v. Doylestown Building and Loan Association, 321 Pa. 173, 183 A. 922 (1936) (improper to enter final judgment on statutory demurrer if defect can be cured by amendment). While perhaps more often the plaintiff requests leave to amend the complaint, a court may on its own motion permit or require amendment. Delgrosso v. Gruerio, 255 Pa.Super. 560, 564 n. 6, 389 A.2d 119, 121 n. 6 (1978). Where the trial court does not permit amendment, we may remand to permit it. Staub v. Tehol Corporation, 205 Pa.Super. 606, 211 A.2d 88 (1965) (vacating order dismissing complaint and granting plaintiff further opportunity to amend complaint “under our inherent power to assure the proper administration of justice”). Moreover, except when there is an error of law or prejudice to the adverse party, Bell v. Shetrom, 214 Pa.Super. 309, 257 A.2d 323 (1969), we will be liberal in permitting amendment so that whenever possible, cases will be determined on their merits. Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). We are especially reluctant to foreclose a party because of the failure or neglect of counsel. McFadden v. Pennzoil Company, 326 Pa. 277, 279, 191 A. 584, 585 (1937); Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979).

2

The majority does not examine the adequacy of appellant’s complaint. Rather, assuming the complaint to be adequate, the majority holds that appellant’s receipt of benefits under the Workmen’s Compensation Act forecloses her right to sue in tort. This holding is directly contrary to Mike v. Borough of Aliquippa, supra.

In Mike, an Aliquippa police officer was attacked and severely beaten by two local constables. The officer received benefits under the Workmen’s Compensation Act and then sued the Borough for negligence in failing to provide a safe place to work. The jury found that the reasons for the constables’ attack on the officer were personal. See 77 P.S. § 411(1), supra. On appeal the Borough argued, as United does here, that the suit was barred because the officer had accepted workmen’s compensation benefits. In an unanimous opinion by HESTER, J., we rejected that argument. Quoting Flaherty v. United Engineers and Contractors, 213 F.Supp. 835, 838 (E.D.Pa.1961), we said:

It is true that Section 303 of the Workmen’s Compensation Act, 77 P.S. § 481, provides that acceptance of compensation shall operate as a surrender by the parties of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment other than as provided in Article III of the Act. But Section 301(c) as amended, 77 P.S., § 411, included in Article III, according to the Dolan decision specifically excludes injuries resulting from personal animosity. It would follow therefore that [plaintiff] may be able to collect damages from [employer] if he can prove that his injuries resulted from the personal animosity of [his assailant]. He is not estopped to proceed with his suit on this ground. 213 F.Supp. at 838.
Mike v. Borough of Aliquippa, supra, 279 Pa.Super. at 392, 421 A.2d at 256.

The only authority the majority cites in support of its conclusion that appellant, having received workmen’s compensation benefits, is barred from suing United, is Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981). Consideration will show, however, that Gillespie is consistent with Mike, and that the majority’s exclusive reliance on it is misplaced.

Gillespie was an appeal from dismissal of a complaint. In reversing, we held that the complaint sufficiently alleged that the attack by a fellow employee had been for personal reasons. Relying on Mike, we further held that the employer could be joined on the theory that it had not provided a safe place to work. We then noted that the record contained a notice of denial of workmen’s compensation because the “disability [was] not related to employment.” 292 Pa.Super. at 17 & n. 3, 436 A.2d at 698 & n. 3. We also referred to a “Compensation Agreement” contained in the record, and stated that we could not “from the state of the record, ... determine whether Gillespie [was] barred, by an agreement, from proceeding in tort against [his employer].” Id., 292 Pa.Superior Ct. at 17, 436 A.2d at 698. We concluded by saying that “the record [is not] dispositive as to whether appellant and/or [the employer] have waived rights and/or defenses by their failure to appeal rulings concerning the Workmen’s Compensation claim.” Id. We then stated:

When an injury has been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer. An employee may sue a third party whose conduct caused an injury; but neither the employee nor the third party may join an employer in such suit. See Atkins v. Urban Redevelopment Auth., 263 Pa.Super. 37, 396 A.2d 1364 (1979).
Gillespie, supra, 292 Pa.Superior Ct. at 18, 436 A.2d at 698.

For the majority, this last statement ends our inquiry. I am not so persuaded. First, the majority fails to acknowledge that by holding that an employee could sue his employer for failing to provide a safe place to work, Gillespie followed Mike. Second, the statement in Gillespie that “[w]hen an injury has been compensated under the Act,” the employee may not sue the employer, was dictum, for the employee had in fact not been compensated under the Act. Finally, the majority fails to acknowledge that in Scantlin v. Ulrich, supra, we stated that Mike and Gillespie “stand for the same proposition.” 318 Pa.Super. at 412, 465 A.2d at 21. Referring to the above-quoted statement in Gillespie, on which the majority now relies, we said that it

was obviously meant to clarify the previously stated position that an employer cannot be vicariously liable for the intentional acts of his employee. When an employee’s intentional act motivated by personal reasons, was foreseeable by the employer, the employer may be liable on a negligence theory for not providing a safe work place. Id.

In short: When an employee’s injuries were the result of the personal animosity of a fellow employee, the employer may not be held vicariously liable for the intentional tort of its employee, but it may be held liable if, as in Mike and Gillespie, its failure to provide a safe place to work is proved. If, as appellant alleges she can prove here, the employer participated in the employee’s intentional conduct, the employer may be held liable, not vicariously for its employee’s intentional tort, but for its own intentional tort.

Some further comment on Mike and Gillespie may be useful. They may be understood by examining the relevant provisions of the Workmen’s Compensation Act. The “exclusive liability” provision of the Act, 77 P.S. § 481(a), provides that “the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, ... on account of any injury or death as defined in Section 301(c)(1) and (2) ... ” The term “injury” in Section 301(c)(1) of the Act “mean[s] an injury to an employe, ... arising in the course of his employment and related thereto, ...” 77 P.S. § 411(1). In addition, it will be recalled that “injury arising in the course of employment” does not include “an injury caused by an act of a third person intended to injure the employe becausé of reasons personal to him, and not directed against him as an employe or because of his employment.” Id. In Gillespie, while noting that if an injury (presumably as defined in the Act) were compensated (presumably as the Act provides), then the employee would be unable to sue the employer, we held that the employee’s complaint stated a claim for injuries not included within the Act’s definition of “injury,” in other words, the employee had alleged injuries that did not arise in the course of his employment, so that the exclusive liability provision of the Act was inapplicable. Thus understood, Gillespie does “stand for the same proposition” as Mike, as we said in Scantlin it did.

There is one respect in which this case differs from Mike and Gillespie. In Mike and Gillespie the claim was that the employer had been negligent. Here, the claim is that as the employer, United, conspired with its employees to commit an intentional tort, as a result of which appellant’s husband died. Thus this case is more compelling than either Mike or Gillespie. See Readinger v. Gottschall, 201 Pa.Super. 134, 137-38, 191 A.2d 694, 695-696 (1963) ('injury ... in the course of employment’ does not include an intentional tort committed by the employer). In any event, contrary to the majority, appellant’s receipt of workmen’s compensation benefits does not bar her maintenance of an action against United, if she is able to amend her complaint to plead a claim under the Act.

The order of the trial court should be reversed and the case remanded for proceedings consistent with this opinion.

      . See also, the case of Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983) and Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983) two recently filed opinions of the Supreme Court of Pennsylvania.

      . Appellee's motion for summary judgment and the trial court’s order were limited to summary judgment as to the employer and were not directed to the two employees named in the complaint.

      . Contrary to the majority’s view, at 1057, the record in Gillespie was clear that Gillespie had been denied workmen's compensation. What was unclear was whether Gillespie and his employer had entered into an agreement under which Gillespie was precluded from suing the employer in tort.

      . In a footnote to the above-quoted statement in Gillespie we stated: "For a contrary result, prior to the 1974 Amendment to the Act, see Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); and Burke v. Duquesne Light Co., 231 Pa.Super. 412, 332 A.2d 544 (1974).” Our citation to Socha and Burke stands only for the proposition that as a result of the 1974 amendments to the Act, Act of December 5, 1974, P.L. 782, No. 263, a third party sued by an employee may not join the employer in an action. In both Socha and Burke the employee had sued a third party for injuries and the third party was able to join the employer as an additional defendant. The 1974 amendments to the Act include the addition of Section 303(b), 77 P.S. § 481(b), which provides: “In the event injury or death to an employe is caused by a third party, then such employe, ... may bring [an] action at law against such third party, but the employer, ... shall not be liable for damages, ..See Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). Section 303(b) does not preclude recovery by an employee from an employer; indeed, it has nothing to do with an employee's suit against an employer. The majority states, at 1057, that in its view the fact that the Act as amended in 1974 applies to this case means that the result here should differ from that in Mike. The majority does not explain why this should be so, and it cites no authority for its view except the above-quoted statement from Gillespie, which, as dictum, is not persuasive.

      . The majority claims that "in none of the ... cases [I have cited] was there a finding by a competent tribunal that the injury was, in fact, compensable." At 1057. It is true that in Gillespie the workmen’s compensation referree found thát Gillespie’s injuries were not covered under the Act. In both Mike and Scantlin, however, the employee did receive workmen’s compensation. It is not possible to tell from those opinions whether a "competent tribunal” awarded those benefits or whether they were paid in the ordinary course. Insofar as the present case is concerned, this matter need not detain us, for appellant argues that her husband’s death was not an injury within the meaning of the Act, and that accordingly, the exclusive remedy provision of the Act does not apply here.


author: TAMILIA, Judge:

text:
    482 A.2d 1062
    METROPOLITAN EDISON COMPANY v. OLD HOME MANOR, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied Feb. 22, 1985.

      Michael E. Calderone, Pittsburgh, for appellant.
    John M. Cramer, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the Court of Common Pleas of Indiana County entered July 26, 1982, amending a prior order of the Court of June 8, 1982 and adding prejudgment interest to a jury verdict rendered in favor of appellee, Metropolitan Edison Company, and against appellant, Old Home Manor, Inc. For the reasons stated below, we affirm.

An action in assumpsit was filed by Metropolitan Edison Company (hereinafter Met-Ed) on May 6, 1977 seeking the return of the balance of monies deposited with appellant pursuant to the parties’ contract for a supply of coal. Appellant contended that the remaining balance of the monies deposited was $225,648.80; Met-Ed contended that the amount was $225,894.05. On November 3, 1981, the jury, after being instructed by the trial judge to consider only the liquidated sum proffered by appellant since Met-Ed produced no credible testimony to support its figure, returned a verdict in favor of Met-Ed in the amount of $225,648.80. Following the jury verdict, Met-Ed noted on the record its request for prejudgment interest which had been sought in both its complaint and pre-trial statement. Thereafter, on November 18, 1981, Met-Ed filed a praecipe for entry of judgment in the amount of the jury’s verdict with interest at six (6) per cent from January 30, 1976, a date seven days after Met-Ed demanded return of the deposit by letter to appellant. However, prior to the filing of the praecipe, appellant had filed timely post-trial motions that had not been disposed of by the lower court. Consequently, the parties consented to strike the judgment that had been entered by the prothonotary. See Pa.R.C.P. 1039. By order of the lower court, dated December 16, 1981, the judgment was stricken.

On June 8, 1982, the lower court issued its opinion denying appellant’s post-trial motions and order directing the entry of judgment “in accordance with the jury’s verdict”. On June 9, 1982, notice of entry of judgment was sent to the parties by the prothonotary. Said notice made no reference to an award of prejudgment interest. On June 15, 1982, Met-Ed filed a second praecipe for entry of judgment with interest at six (6) per cent from January 30, 1976. A second notice of entry of judgment was attached thereto although this notice bore the date of June 9, 1982 and referenced the praecipe filed by appellant on June 15, 1982.

Appellant filed its notice of appeal on June 18, 1982 from the judgment upon the jury verdict entered June 9, 1982. Counsel for Met-Ed learned it was appellant’s position that the amount for appellant’s appeal bond, based on the order of June 8, 1981, should provide only for the principal sum found owing, to the appellant and not include interest. On June 29, 1982, Met-Ed filed a petition for correction of judgment in the lower court to include interest. The lower court issued a rule to show cause. Appellant filed a response to the petition, argument was held and on July 26, 1982, the lower court issued an opinion and order amending the order of June 8,1982 so that the second sentence of that order provided, “Judgment in accordance with the jury’s verdict should be entered in the amount of $225,648.80 with costs, and interest at a rate of six per cent (6%) from January 30, 1976 to the date of entry of judgment”. On August 11, 1982, appellant filed a notice of appeal from the order of July 26, 1982. This Court granted appellant’s application for a stay of the order of July 26, 1982 on September 13, 1982.

Appellant first contends that Met-Ed waived its right to prejudgment interest since it failed to request the issue be submitted to the jury and failed to except to the lower court’s charge containing no relevant instruction. Appellant cites Tibbetts v. Prudential Insurance Company of America, 313 Pa. 310, 169 A. 382 (1933) wherein the Supreme Court of Pennsylvania held that a trial court could not amend a jury’s verdict to include interest where the court had “failed to instruct the jury that interest [should] be allowed in the event of recovery of a liquidated debt.” Id., 313 Pa. at 316, 169 A. at 384. The court reasoned that “[a]s the jury was not instructed that interest might be allowed, it [could] not be said that [the jury] intended to make it part of the verdict, a fact which excludes the right of the court to do so.” Id., 313 Pa. at 316, 169 A. at 384-85; see generally House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 449 A.2d 697 (1982); Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981). The court added that plaintiff’s “failure to raise the question at trial would not only furnish no ground for subsequently raising the point on appeal, but would constitute a waiver of the point.” Id., 313 Pa. at 317, 169 A. at 384-85.

Tibbetts, however, is inapposite because here, the trial judge, not the jury, determined the amount of the initial verdict since he directed the jury to consider only appellant’s proffered liquidated sum of the amount owed to Met-Ed after finding the liquidated sum proffered by MetEd to be unsupportable. See and compare Jonnett Development Corporation v. Dietrich Industries, Inc., 316 Pa. Super. 533, 550, 463 A.2d 1026, 1035 (1983). The issue of the amount of a verdict was taken away from the jury and only the issue of liability under the subject contract was left for their determination. Thus, the lower court was empowered to modify subsequently the amount of the verdict without intrusion upon the jury’s province. Id., 316 Pa.Superior Ct. at 550, 463 A.2d at 1035. Moreover, unlike Tibbetts, the instant case does not present an attempt by the lower court to modify a verdict upon its own motion, as here the verdict was amended pursuant to Met-Ed’s petition for correction of judgment.

Instead, we believe case law subsequent to Tibbetts reflects the present state of the law in this area. In Commonwealth to the Use of Walters Tire Service, Inc. v. National Union Fire Insurance Company, 434 Pa. 255, 252 A.2d 593 (1969), the Pennsylvania Supreme Court rejected the argument that the trial court erred in molding the jury’s verdict to add interest when the question of interest had not been submitted to the jury. Accord, Thomas v. Allegheny and Eastern Coal Company, 309 Pa.Super. 333, 455 A.2d 637 (1982) (proper for court that directed verdict to mold verdict adding interest). Thus, in Oxford Manufacturing Company, Inc. v. Cliff House Bldg. Corporation, 224 Pa.Super. §87, 307 A.2d 343 (1973), our Court directed the addition of interest to the jury verdict where the issue of interest had been submitted to the jury which refused to award interest. We noted that the question of interest upon money owing on a contract is not a matter of discretion for the jury. As we stated in Gold & Company, Inc. v. Northeast Theater Corporation, 281 Pa.Super. 69, 76, 421 A.2d 1151, 1154-55 (1980):

In a contract action, the award of such interest does not depend upon discretion, but is a legal right. Palmgreen v. Palmer’s Garage, Inc., 383 Pa. 105, 108, 117 A.2d 721, 722 (1955); West Republic Mining Co. v. Jones & Laughlins, 108 Pa. 55, 68 (1884). It must be awarded despite the good faith of the party contending the claim.
This rule is applicable despite the fact that the creditor’s demands were in excess of the amount due. (emphasis added)

See also, Daset Mining Corporation v. Industrial Fuels Corporation, 326 Pa.Super. 14, 473 A.2d 584 (1984).

Thus, because it is clear that Met-Ed’s right to prejudgment interest is not contingent upon a submission of the issue to the jury, appellant’s waiver argument is without merit.

Appellant further contends that the lower court lacked jurisdiction to amend its order of June 8, 1982, and the judgment entered therefrom on June 9, 1982, since notice of appeal to this Court was filed on June 18, 1982. (The court’s perfected order was entered on July 26, 1982.) We disagree. The lower court’s action was correct and timely since “after an appeal is taken ... the lower court ... may ... correct formal errors in papers relating to the matter.” Pa.R.A.P. 1701(b)(1). Ordinarily, a lower court is divested of its jurisdiction during the pendency of an appeal. Schreiber v. Schreiber, 308 Pa.Super. 243, 454 A.2d 112 (1982); Ingram v. Dovertown Estates, Inc., 307 Pa.Super. 22, 452 A.2d 884 (1982); Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982); Renk v. Cordice, 286 Pa.Super. 512, 429 A.2d 639 (1981); Pa.R.A.P. 1701(a). However, in Fish v. Gosnell, 316 Pa.Super. 565, 584-85, 463 A.2d 1042, 1052 (1983) we held that the court did not err in modifying a verdict to reflect pre-award interest under Pa.R.C.P. 238, even though it was done beyond the thirtieth day after entry of judgment, since the modification was a permissible correction to a formal error in the court’s papers. Pa.R.A.P. 1701. Although the addition of delay damages under Rule 238 applies only to tort cases, not contract cases, see Reliance Universal, Inc. v. Ernest Renda Contracting Company, Inc., 308 Pa.Super. 98, 454 A.2d 39 (1982), addition of prejudgment interest in a contract case, like addition of delay damages under Rule 238, is a matter of legal right. See Daset Mining Corporation, Gold & Company, Inc. and Oxford Manufacturing, supra. Computation of interest is a “simple clerical matter based upon dates and amounts appearing on the face of the record.” Fish v. Gosnell, supra, 316 Pa.Super. at 584-85, 463 A.2d at 1052. Thus, the lower court’s adding prejudgment interest to the verdict, even though it was done after an appeal was taken, was permissible under Pa.R.A.P. 1701(b)(1). See also, Kingsley Clothing Manufacturing Company v. Jacobs, 344 Pa. 551, 26 A.2d 315 (1942); Diehl v. Keystone Alloys Company, 189 Pa.Super. 149, 153, 149 A.2d 479, 481 (1959), rev’d on other grounds, 398 Pa. 56, 156 A.2d 818 (1959). Accordingly, we will not disturb the judgment as corrected by the order of July 26, 1982.

Order affirmed.

      . Appellant’s appeal regarding the jury verdict is pending in our Court at No. 674 Pittsburgh, 1982.

      . Regarding the two notices of entry of judgment dated June 9, 1982, the lower court in its opinion attempts to rationalize the two and to incorporate the award of interest specified in the Met-Ed praecipe for entry of judgment filed on June 15, 1982. We concur that the entry of judgment date is June 9, 1982. However, we are of the opinion that the June 9th judgment did not contain prejudgment interest. Two notices of entry of judgment exist; one containing no interest prepared pursuant to the lower court’s June 8th order; the other containing interest pursuant to praecipe prepared by Met-Ed. The judgment index, however, indicates that judgment was entered on June 9th by direction of the lower court’s order of June 8th (R. 7a). Furthermore, it is difficult to discern how the judgment entered on June 9th derives from the praecipe dated June 10th and filed on June 15th. Moreover, at the time appellant filed its notice of appeal from the June 9th judgment (now pending at No. 674 Pittsburgh, 1982), it appears that the docket was devoid of an entry concerning prejudgment interest. Finally, Met-Ed’s petition for correction of judgment concedes that the June 9th judgment was entered without prejudgment interest.

      . We note that we have authority to mold the verdict by adding interest. Berkeley Inn, Inc. v. Centennial Insurance Company, 282 Pa.Super. 207, 422 A.2d 1078 (1980).


author: JOHNSON, Judge:

text:
    482 A.2d 1065
    Thomas ELLING, Appellant, v. Emanuel CALLAS, Deanna Callas.
    Superior Court of Pennsylvania.
    Argued June 21, 1984.
    Filed Oct. 5, 1984.
    Reversed and remanded with directions.

      Ralph J. Ruggiero, Pittsburgh, for appellant.
    Leo Kostman, Pittsburgh, for appellees.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   OPINION

JOHNSON, Judge:

Plaintiff-appellant, Thomas Elling, takes this appeal from the order of the trial court sustaining defendant-appellees’ demurrer to appellant’s complaint in equity and dismissing the complaint. Appellant now argues that the trial court erred in denying appellant’s motion to strike appellees’ preliminary objections as an improper “speaking demurrer.” We find appellant’s argument to have merit and we reverse the order of the trial court and remand for further proceedings.

The herewithin action was initiated by appellant in equity by Complaint to Set Aside Fraudulent Conveyances, an action based on the Uniform Fraudulent Conveyance Act, the Act of May 21, 1921, P.L. 1045, No. 379, 39 P.S. §§ 351 et seq. (1954). In his complaint, appellant alleged that on September 27, 1976, appellee Emanuel Callas struck appellant twice in the mouth, severely lacerating appellant’s left cheek. Thereafter, appellant initiated a trespass action against Mr. Callas, which ultimately resulted in a jury verdict on April 30, 1980, in favor of appellant for $12,-000.00. A few months later, on October 29, 1980, Mr. Callas filed a voluntary petition in bankruptcy. Appellant, however, filed an adversary action in which he asked the bankruptcy court to specially except the judgment held by appellant. The court accepted appellant’s arguments, and the court ruled that the judgment held by appellant against appellee Emanuel Callas would not be discharged because it arose from a malicious injury.

Appellant then filed the herewithin complaint in equity, alleging, in relevant part:

9. Emanuel Callas and Deanna Callas are husband and wife and own a house at 509 Ridge Avenue, East Pittsburgh, PA, as tenants by the entireties.
10. Defendant Emanuel Callas has conveyed, applied, and paid in his earnings towards the purchase and/or satisfaction of a mortgage upon the aforesaid entireties realty.
11. Defendant Emanuel Callas has in addition conveyed his earnings to defendant Deanna Callas, who holds such in her own name in the form of bank accounts, stocks, bonds and/or other pecuniary funds and/or motor vehicles.
12. In consequence of the aforesaid conveyances, defendant was rendered insolvent in that at such time, he had insufficient assets to pay his debts as they matured.

In response, appellees filed pleadings captioned “Defendant’s [sic] Preliminary Objections, Demurrer and New Matter.” In turn, appellant filed preliminary objections to appellees’ preliminary objections, etc. The trial court, after hearing argument, sustained appellees’ demurrer and dismissed appellant’s complaint and subsequent preliminary objections. The court refused appellant’s request to be allowed to amend his complaint.

Appellant now argues that the trial court erred in denying appellant’s motion to strike appellees’ preliminary objections as an impermissible speaking demurrer. We find appellant’s argument to have merit. The rules of procedure are very clear as to what type of issues may be raised in preliminary objections. Specifically, at the time appellant’s objections were before the trial court, Pa.R.C.P. 1017(b) provided:

(b) Preliminary objections are available to any party and are limited to
(1) a petition raising a question of jurisdiction or venue or attacking the form or service of a writ of summons;
(2) a motion to strike off a pleading because of lack of conformity to law or rule of court or because of scandalous or impertinent matter;
(3) a motion for a more specific pleading;
(4) a demurrer, which may include the bar of a nonwaivable statute of limitations or frauds which bars or destroys the right of action and the applicability of which appears on the face of the complaint of action.
(emphasis added).

A review of appellees’ preliminary objections reveals these pleadings as not being in line with Rule 1017. Rather, appellees’ “objections” are really little more than lengthy assertions of alleged additional facts. Indeed, by way of introduction to their “objections,” appellees make this statement: “[I]n order to determine this matter, the following is additionally submitted.” It should be noted that appellees’ pleadings do not purport to be, nor do they comply with the requirements for, a responsive pleading. See Pa.R.C.P. 1029.

Notwithstanding the serious procedural defects inherent in appellees’ objections, the trial court accepted as true all of the allegations of fact contained therein, in addition to some other allegations of fact apparently raised at argument on the motions. Relying on these allegations, the court held that all of the conveyances alleged in the complaint were for a fair consideration and were not fraudulent.

In a procedurally comparable case, we made these comments regarding the improper assertion of facts by way of preliminary objections:

It is clear that allegations such as those of [defendant] ... cannot be raised by preliminary objections. This factual argument ... falls within none of the categories to which Pennsylvania Rule of Civil Procedure 1017(b) restricts preliminary objections. Such a defense should have been raised in an Answer. See Pa.R.Civ.P. 1017(a). Because [defendant’s] contentions were raised in a manner not permitted by the civil procedure rules, the court below erred in considering them and, a fortiori, in sustaining them.

Trevellini v. West Realty Company, 289 Pa.Super. 84, 88, 432 A.2d 1062, 1064 (1981).

The Trevellini rationale applies with equal force to the instant matter. Therefore, we find that the trial court erred in refusing to strike appellees’ “preliminary objections.”

The lower court’s order, sustaining appellees’ preliminary objections and dismissing appellant’s complaint, is reversed and the matter is remanded with directions that an order be entered striking appellees’ preliminary objections.


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    482 A.2d 1067
    Lillian BERARDI, Executrix of the Estate of Domenic Berardi, Deceased and Lillian Berardi, in her own right, Appellants v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos Manhattan, Inc., Forty Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Fibreboard Corporation, Pabco Industrial Products Division, Keene Corporation, Certain-Teed Products Corp., Pacor, Inc., Celotex Corporation, Amatex Corporation.
    Superior Court of Pennsylvania.
    Argued June 26, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied Feb. 22, 1985.

      Robert Paul, Philadelphia, for appellants.
    James L. McKenna, Philadelphia, for appellees.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal by Lillian Berardi, Executrix of the Estate of Domenic Berardi, Deceased, and Lillian Berardi, in her own right, appellants, from the entry of an order in the Court of Common Pleas for the County of Philadelphia, in favor of appellees, Johns-Manville Corporation, JohnsManville Sales Corporation, Raybestos Manhattan, Inc., Forty-eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Fibreboard Corporation, Pabco Industrial Products Division, Keene Corporation, Certain-Teed Products Corp., Pacor, Inc., Celotex Corporation, and Amatex Corporation, granting their motion for summary judgment. We affirm.

Summary judgment should be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In deciding whether this is so, a court must view the evidence in the light most favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt.

Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971).

The lower court entered summary judgment, holding that Decedent clearly had knowledge of his cause of action no later than March 17, 1976, but suit was not commenced until September 5, 1978, approximately six months after the limitations clock had run.

Opinion, Takiff, J. at 5.

Appellants make several claims of error. First, they urge that the Statute of Limitations does not bar the within action.

In the instant action, suit had been instituted by the filing of a complaint on September 5, 1978. The statute of limitations which governed the action was the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2).

Domenic Berardi died on May 6, 1981. On July 9, 1981, his wife and executrix of his estate, was substituted as plaintiff. Judge Takiff sets forth the pertinent facts as follows:

Plaintiffs decedent, DOMENIC J. BERARDI, worked as a pipefitter at the Philadelphia Naval Shipyard for approximately twenty years between 1941 and 1974. He was admitted to the Hospital of the University of Pennsylvania (HUP) on May 6, 1974, with a pulmonary condition. A letter from his treating physician, Dr. Robert Mayock, a lung specialist, dated May 25, 1974, indicates that there had been a previous history of chest disorders which had been followed at the Naval Yard Clinic for the past several years. On his most recent visit decedent was told that he had calcium deposits in his lungs and a repeated series of X-rays were obtained. Decedent’s major symptomatology prior to this hospitalization were fatigue and shortness of breath. When Mr. Berardi was discharged on May 10, 1974, the final diagnosis was “pleural asbestosis with obstructive lung disease and hypertensive cardiovascular disease.”
On May 31, 1974, Dr. Frank Bove, decedent’s family physician, filed a report in connection with Mr. Berardi’s disability retirement application in which the diagnosis was, inter alia, asbestosis with pleural plaques. Decedent’s signature appeared on the topmost part of this form; the bottom part was apparently filled in by his physician. On June 14, 1974, decedent himself filled out a “Notice of Injury or Occupational Disease” for the purpose of receiving Workman’s Compensation.benefits. He listed the date and hour of injury as prior to June 14, 1974, the cause of injury as working “with asbestos material for 20 years” and the nature of injury as “lungs.” Decedent signed this form as well.
A letter of October 11, 1974, from Dr. E. Wayne Marshall to Melvin T. Johnson, M.D., the Staff Medical Officer of the U.S. Civil Service Commission, indicates that decedent saw Dr. Marshall, complaining of chest problems and hypertension. X-rays indicated pleural thickening and plaques and the diagnosis was “probable asbestosis.” Marshall proclaimed Mr. Berardi totally disabled. In a second hospitalization at HUP from October 30 to November 2, 1974, there was a final diagnosis of asbestosis and obstructive lung disease.
At his deposition, Mr. Berardi testified that he became familiar with problems related to asbestos exposure, including asbestosis, no later than 1975 by reading newspaper and magazine articles and government literature ... On March 17, 1976, decedent wrote a letter to the U.S. Department of Labor to indicate that he had been exposed to asbestos in the Naval Yard and that this exposure was undermining his health. Describing the link between his asbestos exposure and resulting physical disability, Mr. Berardi wrote:
“Considerable sawings of the insulation materials was constantly taking place with a constantant floation (sic) of asbestos particles which were the basic ingredients of these insulation materials.
Although we took all advantages of the existing safety precautions against breathing in of these materials, it was relatively impossible to eliminate what we have come to know as a serious hazard of asbestos. I might point out that little seemed to be known about the hazard at that time, and that I was personally unaware that I was falling victim to this disease.
I feel I can support the latter statement by the fact that I was experiencing difficulty in breathing and this was manifested by shortness of breath and pains in my chest, then probably aggravating an existing condition of hypertension.”
A Complaint was filed in this action on September 5, 1978.

Appellants herein claim that appellees failed to sustain their burden of showing that appellants possessed the requisite knowledge more than two years before commencement of the within action. They further assert for the first time that the lower court considered forms and letters which were not properly a part of the record to be considered on summary judgment. These exhibits referred to above were (1) letters and reports from physicians; (2) two workmen’s compensation forms; and (3) a “Federal employees’ notice of injury or occupational disease” form. An additional exhibit, referred to earlier, was a letter written by Berardi himself, which appellants claim does not show that Berardi knew “at that time that he had the specific disease of asbestosis.” (Appellants’ Brief at 12)

In Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290, appealed Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983), the level of knowledge necessary before the statute of limitations begins to run was settled and elucidated as follows:

With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.

4 Phila. County Reporter at 295-296. At this time, the “act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). It is clear that Berardi knew of his disease and its cause at least as early as March of 1976.

In Staiano v. Johns Manville, 304 Pa.Super. 280, 450 A.2d 681 (1984), appellants claimed for the first time that exhibits should not have been considered before the lower court because they were “unsworn.” The court noted that although the exhibits should have been sworn, the issue was waived since it was not objected to before the lower court. See Pa.R.A.P. 301(a). The court observed:

Here, had appellants argued to the lower court that it should not consider unsworn exhibits, the court, we may assume, would have excluded the exhibits, Irrera v. SETPA, [231 Pa.Superior Ct. 508, 331 A.2d 705 (1974)], supra, in which event appellees might have been able to cure the defect.

304 Pa.Superior Ct. at 293, 450 A.2d at 687. This argument is therefore waived.

Appellants claim not only that the first prong of the Volpe test has not been satisfied in that Berardi did not have knowledge of his injury until 1977 when he was informed by the federal government that he had asbestosis but also, alternatively, that the Volpe test is an improper test in that the better formulation is found in Nolan v. Johns-Manville Asbestos & Magnesna Materials Co., et al., 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981). That court held that an asbestosis plaintiffs “cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful act of another.” 421 N.E.2d at 868. In other words, it is not until the injured person acquires the knowledge that someone’s negligent act hurt him that the limitations period begins to run.

The Volpe test has been affirmed by this court. See, e.g., Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 471 A.2d 1252 (1984); Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983); Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982).

Appellants claim that a jury should have determined when the statute of limitations began to run. It is clear that decedent knew he had asbestosis prior to two years before filing suit. There was, “... no question of fact for the jury.” See Smith v. Bell Telephone, 397 Pa. 134, 153 A.2d 477 (1959).

This court specifically rejected the argument that the plaintiff must know that he has a cause of action, i.e., that someone is legally culpable, — before the statute of limitations begins to run. Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428 (1980), reversed on other grounds, 496 Pa. 119, 436 A.2d 181 (1981).

“once [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim. Volpe v. Johns-Manville, supra [4 Phila. County Reporter], at 303.”

Staiano v. Johns-Manville Corp., 304 Pa.Superior Ct. at 288, 450 A.2d at 685.

Next, appellant claims that the lower court erred in dismissing the claims of Lillian Berardi in her own right for loss of marital consortium, emotional distress at witnessing her husband’s deterioration, and for further alleged fear of contracting asbestos-related diseases in the future.

The limitations period for a wife’s claim for loss of consortium began to run on the same date that her husband’s personal injury claim began to run. Cathcart v. Keene, supra; Staiano v. Johns-Manville, supra. Moreover, recovery could not be had for emotional distress resulting from the development of an occupational disease. Cathcart, 324 Pa.Superior Ct. at 150, 471 A.2d at 507; Amader v. Johns-Manville Corp., 514 F.Supp. 1031 (F.D. Pa.1981). “Clearly the Supreme Court of Pennsylvania contemplated a discrete and identifiable traumatic event to trigger recovery.” Id. 514 F.Supp. at 1032.

With respect to appellants’ claim that Mrs. Berardi had been exposed to asbestos dust brought home by her husband, and, therefore, was in fear of contracting asbestos-related diseases, this Court held in Cathcart

[AJppellants argue, however, that Mrs. Cathcart did suffer injury in that she ingested asbestos fibers brought home by her husband on his clothes---- Her allegation is basically only that she “undoubtedly ingested” asbestos fibers in laundering her husband’s clothes over the years. We agree with the lower court that until Thelma Cathcart is able to allege some physical injury or some medically-identifiable effect linked to her exposure to asbestos particles, her claim for negligent infliction of emotional distress is not legally cognizable.

Cathcart, 324 Pa.Superior Ct. 151-152, 471 A.2d 509. Mrs. Berardi’s only allegation is that she “is waiting for an inevitable process to occur to render her injuries noticeable on an x-ray.” (Appellants’ Brief at 30) Appellants argue that the lower court failed to consider Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970) when it dismissed their claim. That case involved a claim for intentional infliction of emotional distress.

In Papieves, citing the Restatement (Second) Torts, § 46 (1965), our Supreme Court noted that “[t]he law has only recently recognized that the freedom from mental distress directly caused by wanton or outrageous conduct is entitled to legal protection independent of any other cause of action____” 437 Pa. at 378, 263 A.2d at 121.

As in Cathcart, we are unable to determine whether a claim for intentional infliction of emotional distress was raised in the lower court, and, therefore, will not consider that claim. It should be noted that it was not addressed by Judge Takiff. Moreover, appellants claim that Plummer v. U.S., 580 F.2d 72 (3rd Cir.1978) is “on all fours with plaintiff Lillian Berardi’s claims for mental distress at discovering the risks to her own future health.” As in Cathcart

We find Plummer to be readily distinguishable. In the case before us, Mrs. Cathcart has demonstrated no physical manifestation of disease whatsoever.

Appellants further claim that the lower court erred in failing to hold that the injuries from asbestos are continuing injuries, citing Daniels v. Beryllium Corp., 211 F.Supp. 452 (E.D.Pa.1962)

Appellants have not alleged that appellant-husband’s condition was aggravated by further exposure to asbestos during the two years prior to his suit. Since appellants have not alleged a claim within Daniels v. Beryllium, supra, we are not called upon to decide whether such a claim would have been valid. Even if it would have been, since it was not alleged it was not dismissed by the lower court’s entry of summary judgment.

Staiano v. Johns-Manville, 304 Pa.Superior Ct. at 296, 450 A.2d at 688.

Moreover, “Appellants in the case before us have not alleged that tortious conduct of the defendants has occurred during the two years prior to filing of the complaint, and we find that the fact that the injuries are continuing ones, caused by the continuous action of asbestos fibers in their homes, is not sufficient to toll the limitations period for any aggravation of their injuries.” Cathcart, 324 Pa.Superior Ct. at 147, 471 A.2d at 506.

Finally, appellants claim that the lower court erred in refusing to permit the complaint to be amended to plead a cause of action in admiralty. Appellant was not

engaged in activity that bore a significant relationship to traditional maritime activity.

Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984). Therefore, admiralty law is not controlling. Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983).

Accordingly, we affirm the order of the lower court.

OLSZEWSKI, J., filed a concurring opinion.

OLSZEWSKI, Judge,

concurring:

While I agree with the result reached in this case, I voice my concern as to the test applied by the majority to determine when the statute of limitations began to run in appellants’ wrongful death action. The majority finds controlling the three-prong test expressed in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983). I would apply instead the less-complicated two-part test most recently enunciated in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). Indeed, the en banc decision in Cathcart was published after Volpe. It is therefore our most recent pronouncement on this controversial issue.

      . "The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
      [Amended 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, eff. in 60 days]

      . In Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), the majority applied a derivative of the Volpe test.
      We find that the statute of limitations begins to run in “creeping disease” cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem.
      324 Pa.Superior Ct. at 136-137, 471 A.2d at 500.
      However, Judge Wickersham writes separately to stress that while this test is "not incorrect”, the Volpe test is less confusing. He notes that Volpe “is currently before an en banc panel of this court.” 324 Pa.Superior Ct. 155 n. 1, 471 A.2d 510 n. 1. Volpe was, therefore, decided after Cathcart and applies the three-part test.

      . Negligent infliction of emotional distress normally requires physical injury under Restatement of Torts § 436(2) unless it can be fit into the confines of e.g. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) or Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). See infra this page.

      . In Plummer v. United States, 580 F.2d 72 (3rd Cir.1978), it was alleged that prison authorities had negligently permitted a prisoner with an active case of tuberculosis to mingle among the general prison population, exposing the plaintiffs to the risk of contracting tuberculosis. Medical tests had disclosed that, although the plaintiffs were suffering no symptoms, their bodies were actually harboring dormant tubercle bacilli, which necessitated a precautionary year-long treatment with drugs.