text:
    434 A.2d 740
    COMMONWEALTH of Pennsylvania, v. Johnnie HUTCHINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed Aug. 28, 1981.
    Petition for Allowance of Appeal Denied March 8,1982.

      Dennis Kelly, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Following a jury trial, appellant was convicted of five counts of robbery and one count each of possession of an instrument of crime and involuntary deviate sexual intercourse. Finding no merit in any of appellant’s contentions, we affirm.

I.

Early in the afternoon of July 30, 1976, a man wearing a blue checked shirt and brandishing a gun robbed the West Oak Lane Medical Center and committed an act of involuntary deviate sexual intercourse upon one of the robbery victims. The man stole some credit cards, six car wash slips, and approximately eight hundred dollars. Two of the victims identified appellant as the perpetrator, whereupon the police successfully sought a search warrant for appellant’s home. The probable cause section of the affidavit stated, in its entirety:

On 7/30/76 at approx. 1:30 P.M., a negro male later identified as Johnnie Hutchinson 22 N/M, res. 7426 Briar Rd. entered the West Oak La. Medical Center located at 7353 Limekiln Pk. This male produced the aforementioned gun and proceeded to rob the doctor, nurse and two patients.
Taken in this robbery was approx. $800 total from the victims, and also taken were approx. 6 car wash slips in the nameof [sic] Flourtown Car Wash.
On 7/30/76 at approx. 6:00 P.M., the Affiant displayed 50 or more photos to Complainants, Dr. Jack Solot and Phyllis Till. Each of the complainants identified Hutchinson without question as to the person responsible for this said robbery.

The subsequent search of appellant’s home revealed, inter alia, a blue checked shirt matching that worn by the perpetrator and a .22 caliber gas pellet gun. These items were admitted into evidence at trial.

Appellant contends that the shirt and gun were inadmissible because the search warrant affidavit failed to aver that evidence could be found in his home and therefore did not establish probable cause to justify the search. The affidavit of probable cause must contain sufficient facts to permit a neutral and detached magistrate to conclude with reasonable certainty that a crime has been committed and that evidence or fruits thereof may be found on the premises to be searched. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). In United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the United States Supreme Court held that such applications should be read in a “commonsense and reasonable fashion” rather than with “[a] grudging and negative attitude ... . ” We agree with the lower court that the facts contained in the present affidavit formed a sufficient basis for the issuing authority to conclude that evidence from the robbery would be found in appellant’s home. The affidavit stated that appellant had been positively identified by two of the victims. See Commonwealth v. Garnett, 458 Pa. 4, 7, 326 A.2d 335, 337 (1974); Commonwealth v. Mamon, 449 Pa. 249, 258, 297 A.2d 471, 476 (1972). Moreover, the items seized, a shirt and a gun, were each of a type reasonably likely to be found in the perpetrator’s home, especially given the short period of time between the commission of the crimes and the application for the search warrant. In similar circumstances, courts have held it reasonable for an issuing authority to conclude that evidence would be found in the homes of suspects. See United States v. Richard, 535 F.2d 246 (3d Cir. 1976) (evidence seized pursuant to a search warrant admissible because the issuing magistrate could reasonably infer that evidence would be found at defendant’s home from facts that he had been identified as the suspect, the premises to be searched were his home, the affidavit had been made shortly after commission of the crime, and likelihood that he would discard his clothing at home); United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970) (reasonable to infer that suspect would hide stolen mail in his home from the value of the mail and his opportunity to conceal it). See also United States v. Picariello, 568 F.2d 222 (1st Cir. 1978) (magistrate may infer presence of evidence at home of suspect from type of crime committed, nature of evidence sought, and opportunity for concealment); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) (same). Cf. United States v. Charest, 602 F.2d 1015 (1st Cir. 1979) (unreasonable to infer that murder weapon would be found in suspect’s home eighteen days after crime); Commonwealth v. Heyward, 248 Pa.Super. 465, 375 A.2d 191 (1977) (unreasonable to infer that stolen automobile title certificates would be located in suspect’s home more than two years after theft). Consequently, the lower court properly concluded that the search warrant was supported by probable cause and that the shirt and gun were admissible.

II.

At trial, while the jury was in recess, appellant attempted to call his brother Larry Hutchinson to admit that he had committed the crimes with which appellant was charged. When Larry invoked his privilege against self-incrimination, appellant sought to introduce alleged admissions against penal interest made by Larry on December 18, 1976, and January 6, 1977. Larry’s first inculpatory statement was made to an investigator from the office of the public defender while that office represented both appellant and his brother. Upon discovery of its conflicting representation, the office of the public defender withdrew as Larry’s counsel, whereupon the lower court appointed new counsel independent of that office. Before Larry could meet with his newly-appointed attorney, the defender took a second, nearly identical inculpatory statement which Larry subsequently signed. Although Larry knew that he was no longer represented by the defender when he made that statement, he was unaware of the existence of the attorney-client privilege. At appellant’s trial, the lower court sustained an objection by Larry’s attorney on the basis of attorney-client privilege and excluded both statements. Appellant now challenges that ruling on this appeal.

“Where legal advice of any kind is sought .. . from a professional legal adviser in his capacity as such, . .. the communications relating to that purpose, . . . made in confidence ... by the client, . .. are at his instance permanently protected ... from disclosure by himself or by the legal adviser, ... except [if] the protection be waived.” 8 J. Wigmore, Evidence § 2292 (McNaughton rev. 1961) (footnote omitted) (hereinafter cited as Wigmore). See also, Act of May 23, 1887, P.L. 158, No. 89, § 2(d), 19 P.S. § 686 (“Nor shall counsel be competent to testify to confidential communications made to him by his client, or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client.”) (repealed and reenacted at 42 Pa.C.S.A. § 5916). The privilege, which attaches to statements made to a lawyer or his agents, see, e. g., Dabney v. Investment Corp. of America, 82 F.R.D. 464 (E.D.Pa.1979); Goldstein v. Great Atlantic & Pacific Tea Co., 118 So.2d 253 (Fla.App.1960); Wigmore § 2301, survives the termination of the attorney-client relationship. Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equipment Corp., 546 F.2d 530, 539 n. 22 (3d Cir. 1976), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977); Wigmore § 2323. See also Code of Professional Responsibility, Canon 4, and EC 4-6. The December 18, 1976 statement, made to an investigator from the defender’s office during that office’s representation of Larry Hutchinson, clearly was a privileged communication and, therefore, was properly excluded upon Larry’s timely assertion of the attorney-client privilege. See Commonwealth v. Trolene, 263 Pa.Super. 263, 270, 397 A.2d 1200, 1204 (1979) (former client may assert privilege); Commonwealth v. McKenna, 206 Pa.Super. 317, 322, 213 A.2d 223, 226 (1965) (same).

Appellant argues, however, that the January 6, 1977 statement is not privileged because it had been made after the attorney-client relationship had ended. We disagree. A fundamental purpose of the attorney-client privilege is to foster full communication between an attorney and his client. See Wigmore § 2291. See also Code of Professional Responsibility, supra EC 4-1. That purpose must be read in the context of the lawyer’s concomitant duty to preserve the confidences and secrets of his client. Id., Canon 4. Disciplinary Rule 4-101 admonishes counsel not to reveal the confidences or secrets of his client, use them to the client’s disadvantage, or use them to the advantage of a third person. Id., DR 4-101(B). A lawyer may, of course, reveal a confidence or secret if the client consents after full disclosure. Id., DR 4-101(C)(l). “A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.” Id., EC 4-4. In the instant case, the January 6, 1977 statement was a mere reiteration of a privileged statement. Moreover, the January 6, 1977 statement had been made without disclosure of the attorney-client privilege and before Larry could confer with his newly-appointed counsel. Under these circumstances, the lower court properly excluded the January 6, 1977 statement.

III.

Appellant contends next that the lower court erred in excluding statements against penal interest which Larry allegedly made to Tracey Taylor on the night of the crime. We disagree. In Commonwealth v. Hackett, 225 Pa.Super. 22, 29, 307 A.2d 334, 338 (1973), we held that to be admissible, a declaration against penal interest must exculpate the defendant from the crime with which he is charged and bear sufficient indicia of reliability. See also Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Moreover, only those admissions containing specific incriminating facts fall within the ambit of this exception to the hearsay rule. Compare Commonwealth v. Weaver, 274 Pa.Super. 593, 603, 418 A.2d 565, 570 (1980) with Commonwealth v. Haberman, 257 Pa.Super. 127, 132, 390 A.2d 279, 281 (1978). Ms. Taylor would have testified that Larry admitted on the night of the crime to having made a “beat” for six hundred dollars and that the term “beat” was understood in their community to refer to a robbery. Even if we were to assume that this declaration is sufficiently reliable, but see Commonwealth v. Pompey, 248 Pa.Super. 410, 375 A.2d 163 (1977) (declaration not made to a public official or one having an interest adverse to the declarant is inadmissible), Larry’s statement to her did not contain specific facts inculpating him in the robbery of the medical center with which appellant was charged. When Ms. Taylor had been called to establish a waiver of the attorney-client privilege, see note 3, supra, she testified that she did not really know what Larry had meant when he made the declaration to her and that that had been his first occasion to use the term “beat” in conversation with her. Under those circumstances, the lower court properly excluded the declaration. See Commonwealth v. Pompey, id., 248 Pa.Super. at 415, 375 A.2d at 165.

IV.

Appellant contends next that the lower court erred in refusing to allow the jury to view Larry Hutchinson. Appellant argues that such an exhibition would have allowed the jury to determine that he and his brother resembled one another and thus would have substantiated his claims of mistaken identity and alibi. We find no error in the lower court’s ruling. Appellant presented no admissible evidence that his brother had committed the crimes with which he had been charged, and there was no evidence that the two brothers looked alike. Moreover, the identification evidence already before the jury was quite positive. Under these circumstances, the lower court properly denied appellant’s request to exhibit Larry to the jury. Cf. Commonwealth v. Britton, 251 Pa.Super. 335, 380 A.2d 807 (1977) (identifying witness’ highly contradictory statements provided basis for allowing cross-examination and direct evidence concerning resemblance of defendant to his deceased brother).

V.

As part of his alibi defense, appellant called his probation officer, Marilyn Monaco, to testify concerning his appearance on the day in question and to establish his whereabouts after the crime had been committed. Appellant requested that she be identified only as a court employee. The lower court ruled, however, that her status should be disclosed to the jury as evidence of her bias, interest, or prejudice in favor of appellant but that appellant would be entitled to a cautionary instruction. Additionally, the lower court permitted the Commonwealth to impeach Ms. Monaco concerning her interest as a probation officer in discouraging recidivism among her probationers.

Appellant argues that in permitting the disclosure of Ms. Monaco’s status as appellant’s probation officer, the lower court admitted evidence that he had committed other crimes. Even if we were to conclude that the jury could reasonably infer from the disclosure that appellant had committed other crimes, appellant would not be entitled to a new trial because the cautionary instruction, directing the jurors not to consider the fact that appellant had been on probation as evidence of his guilt, removed any possible prejudical effect which may have been occasioned by the disclosure. Commonwealth v. Povish, 479 Pa. 179, 188, 387 A.2d 1282, 1287 (1978); Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977); Commonwealth v. Whitfield, 275 Pa.Super. 530, 533, 419 A.2d 27, 29 (1980).

Appellant argues also that the lower court should have granted his motion for a mistrial because the Commonwealth’s cross-examination of Ms. Monaco unduly emphasized his status as a probationer and the witness’ possible interest in him. We disagree. A witness may be impeached by cross-examination tending to show that the witness’ bias, interest or prejudice. Commonwealth v. Hamm, 474 Pa. 487, 500, 378 A.2d 1219, 1226 (1970). The scope of cross-examination is a matter within the discretion of the trial judge who will not be reversed absent a clear abuse of discretion or an error of law. See, e. g., Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976); Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). We have reviewed the record thoroughly, and conclude that the lower court did not abuse its discretion in permitting the Commonwealth to impeach Ms. Monaco. Consequently, the lower court properly denied appellant’s request for a mistrial.

VI.

Appellant contends finally that the lower court erred in ruling that he could be impeached with a 1972 conviction for aggravated robbery. The burden is upon the Commonwealth to establish that the need for impeachment outweighs the inherent potential for prejudice when it seeks to impeach a defendant with a prior conviction. See Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In Commonwealth v. Roots, our Supreme Court held the following factors relevant in balancing the competing interests of the Commonwealth and the defendant:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

482 Pa. at 39, 393 A.2d at 367 (footnote omitted). Once the lower court has weighed the competing factors, its decision to permit impeachment with a prior conviction will not be reversed absent an abuse of discretion. Commonwealth v. Roots, id., 482 Pa. at 41, 393 A.2d at 368. Appellant argues that the lower court improperly weighed the competing factors because the Commonwealth had a strong case and his testimony was crucial to his defense. We disagree. Appellant presented his alibi defense through the testimony of four other witnesses. His own testimony would have merely been cumulative. Under similar circumstances, this Court found impeachment proper when a defendant was able to present his alibi defense through the testimony of four other witnesses. Commonwealth v. Flores, 247 Pa.Super. 140, 146-47, 371 A.2d 1366, 1369-1370 (1977). Cf. Commonwealth v. Cooke, 267 Pa.Super. 34, 40, 405 A.2d 1290, 1293 (1979) (defendant had several eyewitnesses); Commonwealth v. Quartman, 253 Pa.Super. 460, 465, 385 A.2d 429, 432 (1978) (defendant presented his defense through testimony of other witnesses); Commonwealth v. Campbell, 244 Pa.Super. 505, 509, 368 A.2d 1299, 1301 (1976) (defendant called other witnesses to show that he did not commit the crime). Consequently, the lower court did not abuse its discretion in ruling that appellant could be impeached with his prior robbery conviction.

Judgment of sentence affirmed.

      . Appellant contends also that the shirt and gun were inadmissible because they had not been specifically identified in the warrant as items to be seized. We disagree. Although the shirt had not been listed in the warrant, it could be seized under the plain view doctrine because it had been found on appellant’s bed. Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978). The gun, described in the warrant as a “large caliber blue steel revolver,” was reasonably within the scope of that description and thus, properly subject to seizure. See Government of the Virgin Islands v. Gereau, 502 F.2d 914, 930 (3d Cir. 1974) (“description of ‘rifles, shotguns, pistols ... ’ should not be read over-literally as placing the machine gun beyond the warranted scope of the search”), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). Cf. Commonwealth v. Searles, 450 Pa. 384, 387, 302 A.2d 335, 337 (1973) (notebook containing writing samples not within scope of warrant describing “check and check-writing equipment”).

      . See Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) (although a witness may not be called before the jury solely for the purpose of having him invoke the privilege against self-incrimination and the inferences arising therefrom, court may take his testimony in camera to establish the basis for the asserted privilege); Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973) (same).

      . Appellant contends also that his testimony and that of another defense witness, Tracey Taylor, established that Larry had waived the attorney-client privilege. That contention is meritless because neither of them had been present while Larry made the privileged statements. See Wigmore §§ 2311, 2326 & n. 1, 2327.

      . Appellant argues also that the lower court erred in excluding Larry’s declaration against penal interest made to him while they had been incarcerated. The lower court properly excluded that evidence because the statement was not made under circumstances evidencing its reliability. See Commonwealth v. Pompey, supra.

      . Appellant mistakenly argues that the testimony of a robbery victim, Dr. Jack Solot, established a sufficient basis to warrant showing Larry to the jury. Contrary to appellant’s assertion, Dr. Solot never testified that the brothers, in fact, resembled one another. Instead, he stated that although he had never seen Larry he had been told of him, and of the facts that the brothers resembled one another and that Larry was missing a front tooth.

      . Compare Commonwealth v. Washington, 488 Pa. 133, 137, 411 A.2d 490, 492 (1979); Commonwealth v. Clark, 453 Pa. 449, 453, 309 A.2d 589, 591 (1973); Commonwealth v. Allen, 448 Pa. 177, 180, 292 A.2d 373, 375 (1972); Commonwealth v. Rivers, 238 Pa.Super. 319, 322, 357 A.2d 553, 555 (1976) (reasonable for jury to infer that defendant had committed other crimes) with Commonwealth v. Black, 464 Pa. 604, 605, 347 A.2d 705, 706 (1975); Commonwealth v. Whitfield, 275 Pa.Super. 530, 533, 419 A.2d 27, 29 (1980) (not reasonable for jury to infer that defendant had committed other crimes).

      . Appellant argues also that his testimony was necessary to establish Larry’s declaration against penal interest. As noted above, see note 4, supra, that evidence was inadmissible. Consequently, the lower court did not abuse its discretion in permitting appellant to be impeached by his prior robbery conviction.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    434 A.2d 747
    Herby EICHELBERGER v. Vivian Lee WARNER v. Leroy C. RICE, Administrator of the Estate of Dava C. Rice, Deceased, v. VALLEY MUTUAL INSURANCE COMPANY and Federal Kemper Insurance Company. Appeal of FEDERAL KEMPER INSURANCE COMPANY. Herby EICHELBERGER v. Vivian Lee WARNER, Appellant, v. Leroy C. RICE, Administrator of the Estate of Dava C. Rice, Deceased, v. VALLEY MUTUAL INSURANCE COMPANY and Federal Kemper Insurance Company.
    Superior Court of Pennsylvania.
    Argued March 3, 1980.
    Filed Sept. 4, 1981.

      David C. Eaton, Harrisburg, for appellant (at No. 247) and for appellee (at No. 248).
    Allen H. Smith, Wrightsville, did not file a brief on behalf of Eichelberger, appellee.
    Clyde W. McIntyre, Harrisburg, for appellant (at No. 248) and for appellee (at No. 247).
    Leroy C. Rice, appellee, in pro. per.

      William A. Addams, Carlisle, for Valley Mutual, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

This case initiated in an unfortunate traffic accident in which one person was killed and two were injured. One of those injured was Herby Eichelberger, who filed a cause of action against Vivian Lee Warner, the driver of one of the two vehicles. Warner joined as additional defendant Leroy C. Rice, administrator of the estate of Dava C. Rice, deceased, who operated the second vehicle and was killed in this accident. The jury found in favor of Eichelberger and against both defendants. Warner paid the full amount of the award to Eichelberger and took an assignment of the judgment. At the time of the accident, Dava Rice was carried under two insurance policies—a homeowner’s policy issued by Valley Mutual Insurance Company and an automobile insurance policy issued by Federal Kemper Insurance Company. Warner praeciped for a writ of execution against both insurers and subsequently filed a motion for summary judgment against both insurers as garnishees. The court below granted Warner’s motion for summary judgment against Federal Kemper and denied summary judgment against Valley Mutual. From this ruling Vivian Warner and Federal Kemper appeal. Valley Mutual filed a brief as appellee. The essential issue in this appeal is whether one, or both insurance policies cover the liability of Rice. We conclude that based on the particular facts of the instant case, Rice was covered under both insurance policies, and we, therefore, affirm in part and reverse in part the lower court’s decision.

The instant case presents the following facts: On November 3, 1974, Dava Rice was driving her automobile in which her sister, Linda Junk, was a passenger. The two women were traveling south on Route 34 near Carlisle, Pennsylvania, when their vehicle stopped for an unknown reason, although Linda believed that it had run out of gas. Dava parked the car as far to the right side of the road as it would go without hitting the guardrail. However, the berm was not wide enough to accommodate the entire car leaving it partly on the highway. The two women then walked to a gas station and returned a short time later with a can of gas. Two “good Samaritans”, Brian Magaro and Herby Eichelberger, stopped to see if they could be of assistance. Immediately prior to the accident, all four persons were generally assembled at the rear of the Rice vehicle. While the two men were doing this, Dava Rice was standing slightly on the highway behind her vehicle with her back to oncoming southbound traffic. At that moment a car driven by Vivian Lee Warner was traveling in the southbound lane and was approaching the Rice car. According to Warner’s testimony, when she was approximately two car lengths from the Rice vehicle, and about to pass the disabled Rice vehicle, Dava Rice suddenly stepped backwards and to her left, placing her in front of the right front headlight of the oncoming Warner vehicle. Warner struck Rice, who was a few feet from her car, and lost control of her vehicle running into the rear of the Rice automobile. Dava Rice was killed, Brian Magaro sustained serious injuries, Herby Eichelberger was also injured although less seriously and Linda Junk escaped unharmed.

At trial the jury found both Warner and Rice to have been negligent, and this verdict is not now disputed. Rather, we are asked in this appeal to construe the provisions of two insurance policies held by Rice.

We first turn our attention to the relevant provisions of the automobile policy held with Federal Kemper. In this policy, Federal Kemper agrees:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
(a) bodily injury, sickness or disease, including death therefrom, hereinafter called ‘bodily injury’; sustained by any person;

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.. . . Federal Kemper argues that its policy does not cover Rice’s liability because the accident was caused by a bodily movement unrelated to the ownership, maintenance or use of the owned automobile. As did the court below, we reject this argument.

Before interpreting this policy, it must be noted that the general rule of construction used by the courts when interpreting an insurance policy is that an insurance policy is to be construed most strongly against the insurer and liberally in favor of the insured to effect the policy’s dominant purpose of indemnity or payment to the insured where the terms of the policy are ambiguous or uncertain and the intention of the parties is unclear. Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974); Burne v. Franklin Life Ins. Co., 451 Pa. 218, 301 A.2d 799 (1973); Penn-Air, Inc. v. Indemnity Ins. Co. of North America, 439 Pa. 511, 269 A.2d 19 (1970). Accordingly, in Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961), the Supreme Court construed the words “arising out of”, as used in an automobile insurance policy, to mean “causally connected with” and not “proximately caused by.” On this point the Court said:

When the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured. Had the insurer desired to limit its liability to accidents with such a close causal connection to the ownership, maintenance or use [of the motor vehicle] ... as to be encompassed within the scope of proximate causation, it could have and should have so stated in its policy. Construed strictly against the insurer, ‘arising out of’ means causally connected with, not proximately caused by. ‘But for’ causation, i. e., a cause and result relationship, is enough to satisfy this provision of the policy.

Id., 403 Pa. at 607-08, 170 A.2d at 573.

At the time of the accident, the Rice vehicle had run out of gas and Dava Rice was being assisted in refueling her vehicle. Our Supreme Court had held that “maintenance” as used in the context of an automobile insurance policy includes all acts which come within the ordinary scope and meaning of the word. Morris v. American Liability & Surety Co., 322 Pa. 91, 185 A. 201 (1936). Accordingly, as one court said, “It appears inescapable that the replacement of fuel which has been exhausted with use and without which a motor vehicle in inoperative, is a species of maintenance .... ” State Farm Mutual Insurance Co. v. Pan American Insurance Co., 437 S.W.2d 542, 545 (Tex.1969). Federal Kemper, nonetheless, argues that Dava Rice’s negligent act of stepping in the path of an oncoming car is not “causally connected” with the ownership, maintenance, or use of her vehicle. We also reject this contention. As noted above, the Supreme Court in Manufacturer's Casualty held that a cause and result relationship is enough to satisfy the “arising out of” provision of an automobile insurance policy. In the instant case, had not the Rice vehicle run out of fuel, Dava Rice would not have been standing on the highway waiting while Herby Eichelberger poured gasoline into her car. It cannot be said that Dava Rice’s negligent act of stepping in front of an oncoming car was so remote from the ownership, maintenance or use of her vehicle as to be unconnected with them. Therefore, we affirm the lower court’s decision on this point.

We turn now to the provisions of the “homeowner’s” policy which Dava Rice held with Valley Mutual. This policy provided broad general liability coverage in the following terms:

This company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by an occurrence.

An “occurrence” is defined in the policy as “an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.” There are, however, exclusions to this broad, general liability insuring agreement of Valley Mutual. One of these exclusions reads:

This policy does not apply
(1) under coverage E—personal liability. . .
a) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(2) any motor vehicle owned or operated by or rented or loaned to any insured. . . .

Vivian Warner argues that when this exclusion is read strictly against the insured, this exclusion does not apply to Dava Rice’s act of negligently stepping in front of the Warner vehicle. In view of the different canons of construction applied to exclusionary clauses as distinguished from coverage clauses, under the facts of the instant case, we agree with Warner’s argument.

As previously noted, coverage clauses are interpreted broadly so as to afford the greatest possible protection to the insured. Mohn v. American Casualty Co. of Reading, supra; Penn-Air, Inc. v. Indemnity Ins. Co. of North America, supra. Exceptions to an insurer’s general liability are accordingly to be interpreted narrowly against the insurer. Penn-Air, Inc. v. Indemnity Insurance Co. of North America, supra; Miller v. Prudential Ins. Co. of America, 239 Pa.Super. 467, 362 A.2d 1017 (1976); Celley v. Mutual Benefit Health and Acc. Ass’n, 229 Pa.Super. 475, 324 A.2d 430 (1974). These rules of construction are necessary because, as this court has noted, insurance policies are in essence contracts of adhesion. Ranieli v. Mutual Life Ins. Co. of America, 271 Pa.Super. 261, 413 A.2d 396 (1979). Because of these canons of construction, it must be emphasized that a homeowner’s policy and an automobile policy are not necessarily mutually exclusive. See State Farm Mutual Automobile Insurance Company v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973). (Even though inclusion-ary clause of homeowner’s policies and exclusionary clause of automobile insurance policies held by the insured had both been issued by the same insurer and contained nearly identical language, such policies were held not to be mutually exclusive.) As one treatise states:

[S]ome courts and writers have confused further the problem of the use of the automobile with the exclusionary clauses of the homeowner personal comprehensive liability and general liability policies. They have focused attention on the exclusions rather than on the insuring agreements. The insuring agreements of the policies are not the same. The automobile policy agrees to pay all damages ‘* * * arising out of the * * * use of the automobile’ whereas the general liability policy agrees to pay all damages <* * * arising out of an occurrence’. The exclusion of the general liability policy seems to suggest that if the loss arises out of the ‘use’ of an automobile away from the premises it is excluded. However, such a view ignores the insuring agreement on the different policies, and the fact that one focuses on an occurrence and the other on the automobile. And they are not mutually exclusive. The court has a legitimate interest in determining whether the use of the automobile was the ‘occurrence’ which produced the liability. Clearly, if the ‘use’ of the automobile was only incidental to the event that produced liability it should not be an excluded event under homeowner or general liability policies. And, as a California court has stated, the courts will give broad construction to the coverage provisions but strict construction to the exclusions. Thus, there are cases that provide coverage under the homeowner’s policy in the absence of a causal connection between the use of the vehicle and the accident.
The exclusions of the general liability and homeowner policies and the insuring agreement of the automobile policy are not mutually exclusive and recovery can be had under both policies.

Appellant Warner argues that even though Rice’s negligence can be said to be casually connected with the ownership, maintenance or use of her auto for purposes of the inclusionary clause in the automobile policy at issue, for purposes of the exclusionary clause in the homeowner’s policy the proximate cause of the accident was, in addition to the negligence of Warner, Rice’s non-auto related, negligent conduct as a pedestrian. We agree.

In Partridge, the Supreme Court of California was asked to construe the same language as that which is now before our Court—i. e., “arising out of the use” of an automobile. As in the case sub judice, this language in Partridge was contained in both the inclusionary clause of an automobile policy held by the insured and in the exclusionary language of the homeowner’s policy. The Partridge court said:

In view of the [different canons of construction] the fact that an accident has been found to ’arise out of the use’ of a vehicle for purposes of an automobile policy is not necessarily determinative of the question of whether that same accident falls within the similarly worded exclusionary clause of a homeowner’s policy, (citations omitted).

State Farm Mutual Automobile Company v. Partridge, 10 Cal.3d at 102, 109 Cal.Rptr. at 816, 514 P.2d at 128.

In Partridge, the Court was faced with a situation where the insured had committed two negligent acts which jointly caused the accident. The insured in Partridge had modified a gun by filing the trigger so that it had a “hair” trigger. The insured took this gun with him in his vehicle when he went to hunt jackrabbits. At the time of the accident, the insured intentionally drove his vehicle off the paved road and onto the bumpy terrain. The gun accidently discharged, injuring the passenger. The issue in Partridge was whether the insured’s homeowner’s policy, in addition to the insured’s automobile policy, covered this accident. We recognize that the Partridge case is factually different from the instant case and that the court did find that both policies covered the accident for the reason that there were two joint causes to the accident—one auto-related and one non-auto related. Nonetheless, it should be noted that the Partridge Court said that “liability under the homeowner’s policy could possibly be predicated upon the ambiguity of the exclusionary clause in the context of the instant accident.. .. ” Id. at 102, 109 Cal.Rptr. at 817, 514 P.2d at 129. Such an ambiguity exists under the facts of the present case. The exclusionary clause, although it says that the policy does not apply to bodily injury “arising out of” the ownership, etc., of any motor vehicle, does not state whether such injury must be proximately caused by the auto or simply causally connected with the auto. As previously indicated, our Supreme Court in Goodville, relying on the rule that insurance policies are to be strictly construed against the insurer, ruled that for an inclusionary clause, the words “arising out of” the use of an automobile meant causally connected with such use. In keeping with the rule of construction used in Goodville, we hold that for purposes of an exclusionary clause, when the words “arising out of” the use of an automobile are read strictly against the insurer, then it must be concluded that this clause acts to exclude only those injuries which are proximately caused by the automobile. This interpretation is consistent with the general rule that insurance policies are read to effect the policy’s dominant purpose of indemnity or payment to the insured.

Accordingly, we affirm the lower court’s decision granting Warner’s motion for summary judgment against Federal Kemper and reverse the lower court’s denial of Warner’s motion for summary judgment against Valley Mutual and thus in effect find coverage for Warner under both the Federal Kemper and Valley Mutual policies.

WATKINS, J., dissents.

      . Accord O’Dwyer v. Manchester Ins. Co., 303 So.2d 347 (Fla.App. 1974); Oakridge Community Ambulance Service, Inc. v. U.S. Fidelity & Guaranty Co., 278 Or. 21, 563 P.2d 164 (1977). Jamestown Mutual Insurance Co. v. General Accident, Fire & Life Assurance Corp., 66 Misc.2d 952, 322 N.Y.S.2d 806 (1971).

      . 7A Appleman, Insurance Law and Practice, § 4500 (1979) (emphasis added).


author: CAVANAUGH, Judge:

text:
    434 A.2d 752
    Rowland S. WILLIAMS and Shirley Williams, v. ERIE INSURANCE EXCHANGE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed Sept. 4, 1981.
    Sigmon & Ross, P. C., Michael P. Shay, Bethlehem, for appellant.
    P. Jeffrey Hill, Allentown, for appellees.

      Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the court below granting summary judgment to the appellees, Rowland and Shirley Williams, on the question of the liability of the appellant under a no-fault insurance policy for injuries sustained by Mrs. Williams. Because it is interlocutory, we quash the appeal.

There is no dispute that the summary judgment entered in appellee’s favor is limited to the question of liability. As to a determination of damages, the court states that either “party may file a praecipe requesting this case be listed for pre-trial conference for the purpose of ascertaining, to the extent possible, the amount of damages due to plaintiffs.” Thus the order was entered pursuant to Pa.R.C.P., Rule 1035, which states: “. .. a summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.” In Newill v. Piccolomini, 228 Pa.Super. 220, 323 A.2d 40 (1974), this court, relying on Rule 1035, quashed an appeal as interlocutory where summary judgment was granted as to the ownership of certain coal rights, but damages had not yet been assessed. See also 2 GoodrichAmram 2d, § 1035(b):10, p. 449, which states, “. . . where judgment is entered for liability only, reserving the question of damages, this judgment is ‘interlocutory’. Such a judgment is therefore not appealable.”

Appeal quashed.

      . In Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976) the Supreme Court entertained an appeal from an order of the lower court as to liability for trespass based upon the theory of criminal conversation. A determination of damages was expressly reserved. There, however, the court elected to treat the lower court’s order as a certification of the question of whether the theory of criminal conversation retains vitality in light of modem legal and societal changes. 469 Pa. at 275 n. 1, 365 A.2d at 148 n. 1.


author: WICKERSHAM, Judge:

text:
    434 A.2d 753
    Edith L. CHAPMAN, Administratrix of the Estate of William F. Chapman, Deceased v. CITY OF PHILADELPHIA and Southeastern Pennsylvania Transportation Authority and Consolidated Rail Corporation. Appeal of SEPTA and Conrail. Appeal of Edith L. CHAPMAN, Administratrix of the Estate of William F. Chapman, Deceased.
    Superior Court of Pennsylvania.
    Argued May 27, 1981.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Dec. 29, 1981.

      John R. Padova, Philadelphia, for Southeastern Pa. Transp. Authority and Consolidated Rail Corp.
    Albert M. Hankin, Philadelphia, for Chapman.
    Barbara R. Axelrod, Philadelphia, for City of Philadelphia, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WICKERSHAM, Judge:

This appeal is from the lower court’s order sustaining preliminary objections in the nature of a demurrer and dismissing the plaintiff’s, Edith Chapman’s, complaint in trespass against the City of Philadelphia. Plaintiff’s complaint against the City of Philadelphia avers that plaintiff’s decedent, William F. Chapman, died on August 14,1978 as a result of injuries he sustained on August 11, 1978 when he was attacked and robbed by three men on the platform of the Wayne Junction Railroad Station. The complaint alleges that the City of Philadelphia negligently breached its duty to plaintiff’s decedent by failing to maintain law and order, protect the citizens and prevent unsafe conditions from existing.

Appellants argue that the lower court erred in dismissing plaintiff’s complaint without affording her an opportunity to file an amended complaint. We affirm the order of the lower court.

Speaking for The Supreme Court of Pennsylvania, Justice Nix recently stated that:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Sinn v. Burd, 486 Pa. 146, 149-50, 404 A.2d 672, 673-74 (1979).

The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa. D.&C.3d 319 (1979); 46 A.L.R.3d 1084. A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra; 46 A.L.R.3d 1084.

Plaintiff’s complaint fails to set forth any facts from which it would be possible to infer that a special relationship existed between William F. Chapman and the City of Philadelphia, and, consequently, the lower court properly sustained the city’s preliminary objections. Appellant’s argue, however, that the lower court erred in dismissing plaintiff’s complaint without affording her an opportunity to file an amended complaint. We do not agree.

In Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978), the Supreme Court of Pennsylvania stated that “[t]he right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” The court added, however, that “[tjhere may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile.” Id., 482 Pa. at 205, 393 A.2d at 451.

We believe that this is an appropriate case for entry of an order sustaining preliminary objections without leave to amend.

Summary judgment on the preliminary objections should be entered only in clear cases. If there is a possible theory under which the complaint might be self-sustaining, leave to amend should be granted to enable the plaintiff to conform his pleading to that theory. Where doubt exists as to whether or not summary judgment should be entered, it should be resolved in favor of refusing to enter such a judgment. This Rule applies equally to minor errors in the complaint, to the pleading of damages, and to errors attacked by demurrer.
The court is allowed a ‘wide discretion’ in its allowance of amendments. It may allow such amendments in order to include assertions made in the briefs or during the oral argument, it may, when both the complaint and the counterclaim appear insufficient, simply direct the plaintiff to begin anew with an amended complaint, and it may direct an amendment simply for the purpose of presenting a full record so that a subsequent motion for judgment on the pleadings may raise the vital issues.
Where there is not apparent possibility that the plaintiff can set forth a better case by amendment, it is not an abuse of discretion to refuse amendment. If no amendment of the complaint can cure the defects, the court may enter a final judgment. Where the complaint cannot be amended, the court may enter final judgment for the defendant on demurrer without leave to amend.

Goodrich Amram 2d, § 1028(e) :2.

In her memorandum of law filed with her answer to the city’s preliminary objections, plaintiff indicated that her action against the City of Philadelphia was predicated on the fact that the city was aware that the Wayne Junction Railroad Station was a particularly dangerous area but that it did nothing about it. It is clear that such proof would not be sufficient to state a cause of action because it does not establish that a special relationship existed between the city and the plaintiff’s decedent. In their appellate brief, appellants urge us to find that a special relationship exists between the city and any individual who is injured in a particularly dangerous area. We decline to do so.

Appellants urge this court to proclaim a sweeping duty of protection in the law of tort, far beyond anything any court or indeed our own State legislature has been willing to recognize. As the New York Court of Appeals cautioned in Riss v. New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 898, 240 N.E.2d 860, 861 (1968).

The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. This is quite different from the predictable allocation of resources and liabilities when public hospitals, rapid transit systems, or even highways are provided.

Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that should be the scope of public responsibility .... to foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts. (Emphasis added).

Order of court affirmed.

WIEAND, J. concurs in the result.


author: BROSKY, Judge: DiSALLE, Judge, SHERTZ, Judge,

text:
    434 A.2d 756
    CRANSHAW CONSTRUCTION INC., Appellant, v. Lawrence L. GHRIST, Paul Wolk, Individually and Paul Wolk t/d/b/a C. E. Wolk Masonry Co. and C. E. Wolk Masonry Co., a corporation, and Catherine E. Wolk, t/d/b/a C. E. Wolk Masonry Contractor.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1981.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Jan. 4, 1982.

      Ronald J. Bergman, Greensburg, for appellant.
    Robert F. Schultz, Pittsburgh, for Ghrist, appellee.
    Robert J. Behling, Pittsburgh, for Wolk, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   BROSKY, Judge:

This is a trespass action which appellee, Ghrist, commenced to recover damages he suffered when a concrete wall fell upon him. The accident occurred at a construction site where appellee was employed by a subcontractor. Appellant, Cranshaw Construction, Inc., one of the named defendants in the case below, was the general contractor. Appellant argued in a motion for summary judgment that, as the general contractor, it had the status of “statutory employer” conferred by the Pennsylvania Workmen’s Compensation Act. The lower court found that appellant was Mr. Ghrist’s statutory employer but concluded that it did not enjoy the immunity from suit which appellant contends follows from that status and therefore denied the motion. We find that Cranshaw is immune and therefore reversed the order.

Section 203 of the Workmen’s Compensation Act establishes the requisites of statutory employer status in negligence actions. It provides:

An employer who permits the entry upon premises occupied by him or under his control of the laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

In Nineteen North, Inc. v. Workmen’s Compensation Appeal Board, 48 Pa.Cmwlth. 208, 409 A.2d 503 (1979), the Commonwealth Court explained that,

In construing Section 203 of the Act, our Supreme Court has provided us with five requirements necessary to bring an employer within the Act’s definition of a “statutory employer”:
“(1) An employer who is under contract with an owner or one in the position of an owner. . .
(2) Premises occupied by or under the control of such employer. . .
(3) A subcontract made by such employer. ..
(4) Part of the employer’s regular business entrusted to such subcontractor. ..
(5) An employee of such subcontractor.”

[Citing McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930)]. See Pape v. Smith, 227 Pa.Super. 80, 323 A.2d 856 (1974).

Appellant contends that it was appellee’s statutory employer. It argues that it is entitled to the immunity of a statutory employer and that therefore its motion for summary judgment should have been granted.

Because this case is before us on appeal from the denial of a motion for summary judgment, we must view the evidence in light of Pennsylvania Rule of Civil Procedure 1035(b). The Rule provides that summary judgment should be granted if:

. .. the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law.

The pleadings, depositions and interrogatories contain the following evidence. A vice-president of National Development Corporation, the owner of the property on which the accident occurred, stated in an affidavit that appellant had entered into a construction contract with the owner for the erection of buildings on that property.

The officer also stated in his affidavit that on the date of the accident the appellant occupied and was in possession of the premises and was in control of the construction project. In a deposition, a former employee of the subcontractor stated that an employee of appellant, the general contractor, was “more or less” the “boss of the job site.” The witness said that the employee of the appellant was “completely the general of the whole thing.”

A copy of the subcontract agreement between appellant and Mar Ray, Inc., the subcontractor, was attached to the affidavit of the president of Mar Ray, Inc.

In his complaint, appellee alleged that appellant was the general contractor employed to construct a building on the premises where the accident occurred. Appellant later introduced a copy of its contract with the owner of the premises showing it to be the general contractor for the construction of many buildings, including one on the premises in question. The subcontract with Mar Ray, Inc. indicated that Mar Ray was to perform the carpentry work on the property on which the accident occurred.

We believe that there is no genuine question that, under these circumstances, the subcontractor was entrusted with part of the employer’s regular business (that being the construction of the buildings).

Appellee’s complaint states that he was an employee of Mar Ray, Inc. As we have seen, Mar Ray, Inc. was the subcontractor.

Given the above described evidence and the lack of other evidence favorable to appellee, we find no error in the lower court’s finding that there is no genuine issue as to whether appellant was appellee’s statutory employer. See Pape v. Smith, supra.

The effect of this section was explained in Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease (1975) as follows:

Thus, in negligence cases, the general contractor has the full immunity from suit by the employee of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.

Barbieri, supra, vol. 1, § 4.09(3) (footnotes deleted) (citing cases). See Capozzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 42 A.2d 524 (1945).

Section 203 was last amended in 1939. Section 302 of the Act, which is under Art. Ill, formerly entitled, “Elective Compensation,” was amended in 1974. Appellee argues that the amendments to this section also effectively amended § 203 which is part of Art. II, “Damages by Action at Law.”

We are concerned in the present case with subsections (a) and (b) of Section 302. Subsection (a) is found at 77 P.S. § 461, “coverage of employees of subcontractor”; subsection (b) is found at 77 P.S. § 462, “coverage of laborer or assistant hired by employe or contractor.”

Prior to the 1974 amendments, the statute stated that it was to be conclusively presumed that the employer or contractor had agreed to pay compensation. However, the statute did contain what is termed “elective compensation” language. That is, an employer or contractor could, if he complied with the terms of the statute, opt not to pay compensation as called for in the Act.

The present statute includes no elective compensation language. Instead, it provides that contractors and employers are to pay compensation as mandated by the Act, unless the subcontractor (§ 461) or hiring employer (§ 462), primarily liable has secured its payment. The employer referred to in Section 462 is defined in the same way as in the former statute and as in Section 203 of the Act.

Under the former statute, an employer who did not pay compensation was nonetheless accorded the immunity that stems from statutory employer status. As Barbieri, supra, explained:

. . . [W]hen the general contractor is the statutory employer in a negligence suit brought against him by the statutory employe and derives immunity therefore from the statutory employment relationship.....this does not mean that he must pay compensation in a case like Mengi-nie where he has complied with those requirements of Section 302(b) which should save him from compensation liability.

Id. at p. 32 § 409 (citing Menginie v. Savine, 170 Pa.Super. 582, 88 A.2d 106 (1952) where the question was whether the general contractor is liable to pay compensation to the employee of a second subcontractor with whom the general had no contract.)

In Capozzoli, supra, our Supreme Court held that, under the former statute, an agreement by a subcontractor to provide workmen’s compensation for its employees does not operate to remove the statutory employer from the scope of Art. II of the Workmen’s Compensation Act, even though it may operate to relieve such employer from payment of compensation by placing that responsibility upon the subcontractor.

Since Section 203 was not changed by the amendment, we see no reason to construe the alteration of Section 302 as an indirect amendment of the former section. Our research has disclosed no evidence of legislative intent to alter the result in cases like Capozzoli, in which compensation was paid by a party other than the statutory employer.

Furthermore, rules of statutory construction require that every statute be construed, if possible, to give effect to all of its provisions. See 1 Pa. C.S. § 1921(a); Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 410 A.2d 731 (1980).

To find that appellant was not appellee’s statutory employer would be in disregard of the terms of Section 203 of the Act.

Having concluded that appellant was entitled to immunity from liability to the appellee, Ghrist, we come finally to the question of whether he is similarly immune from being joined as an additional defendant by appellee, Wolk.

Section 303 of the Act provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution or indemnity in any action at law, or otherwise, unless liability for such damages contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Act of December 5, 1974, P.L. 782, No. 263, § 6; 77 P.S. § 481 (Supp.1980-1981) (emphasis added) (footnotes deleted).

Section 303(b) prohibits the joinder of an employer as an additional defendant. Arnold v. Barbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978). Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977).

The Hefferin court wrote:

The Supreme Court has made it clear that the purpose of [Section 303(b)] of the Act was to restrict the remedy available to an employer against the employer to compensation, and to close to the employee, and to third parties, any recourse against the employer in tort for negligence. (emphasis added) (citing cases)

Id., 247 Pa.Super. at 369, 372 A.2d at 871.

Prior to the enactment of the 1974 amendments to Section 303 of the Act, the issue of whether an employer was liable for contribution to a third party was controlled by case law. See Giordano v. Clement Martin, Inc., 347 Pa. 61, 31 A.2d 504 (1943); Hattersley v. Bollt, 512 F.2d 209 (1975) (where the Third Circuit Court of Appeals applied cases limiting the contribution of employers to statutory employers).

Case law limited the contribution recoverable from the employer by a third party to the extent of the employer’s statutory liability under the Act. See Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 412 A.2d 1094 (1980). In the event the general contractor had been relieved of the obligation to pay compensation for which it would otherwise have been liable, no right of contribution existed. See Giordano v. Clement Martin, Inc., supra.

The present statute relieves the employer of the obligation to contribute to an award imposed upon a third party. That is, unlike the former approach, the current statute relieves an employer of the obligation to contribute, even if he has paid compensation. The statute broadens the employer’s immunity; it does not diminish it. Appellee’s argument that appellant’s failure to pay compensation should deny it immunity from contribution conflicts with the statute. As this .court’s opinion in Hefferin makes clear, with the enactment of the 1974 amendments, “the Legislature made the Pennsylvania Workmen’s Compensation Act a complete substitute for, not a supplement to, common law tort actions.” Id., 247 Pa.Super. at 369, 372 at 871.

We have found appellant to be appellee’s statutory employer. To find that it is not the “employer” referred to in Section 303, would frustrate the legislative intent as enunciated in Hefferin.

We find that summary judgment should have been granted to appellant and therefore reverse the lower court’s order.

DiSALLE, J., files a concurring statement.

SHERTZ, J., files a dissenting opinion.

DiSALLE, Judge,

concurring:

I concur in the result. If, as the dissenting opinion suggests, it was the intention of our Legislature, in enacting the 1974 amendments to Sections 461 and 462, to “follow those jurisdictions which do not allow general contractors, who have no liability for workmen’s compensation, to escape common law liability as well,” it could very easily have said so, especially when it was aware that the prior language had been construed as immunizing statutory employers from such liability.

SHERTZ, Judge,

dissenting:

The instant record does not establish Appellant as a statutory employer, either as a matter of fact or as a matter of law. Appellant is, therefore, neither immune from common law liability nor insulated against joinder as an additional defendant. Thus, the lower court was correct, albeit for reasons with which I respectfully disagree, in denying Appellant’s motion for summary judgment.

A motion for summary judgment may properly be granted only where there is no genuine issue as to any material facts and the moving party is entitled to judgment as a matter of law. Rule 1035, Pa.R.Civ.P. The record must be vie wed. in the light most favorable to the non-moving party, the moving party has the burden of demonstrating that there exists no genuine issue of fact, Nash v. Chemetron Corp., 246 Pa.Super. 595, 371 A.2d 992 (1977) (citations omitted), and summary judgment should be granted only where the case is clear and free from doubt. Bollinger v. Palmerton, 241 Pa.Super. 341, 361 A.2d 676 (1976). Moreover, all doubt as to the existence of a genuine issue as to a material fact should be resolved against the moving party. Id. In passing upon a motion for summary judgment, it is not the function of the court to decide issues of fact, but rather, solely, to determine whether there is an issue of fact to be tried. Matson v. Parking Service Corporation, 242 Pa.Super. 125, 363 A.2d 1192 (1976) (citation omitted). Although this distinction may, at times, be difficult to discern, it is one which may not be overlooked. Finally, as to the statutory employer concept, it must be borne in mind, as pointed out by Judge Hoffman over a decade ago,

... very great care . . . must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. [Section 52] of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be causally converted into a shield behind which negligent employers may seek refuge.

Stipanovich v. Westinghouse Electric Corporation, 210 Pa. Super. 98, 106, 231 A.2d 894, 898 (1967).

Given the aforementioned principles, I do not believe the statutory employer concept is instantly applicable under the strict requirements as enunciated in McDonald v. Levinson, 302 Pa. 287, 153 A. 424 (1930). Furthermore, I believe the statutory employer concept is inapplicable, inasmuch as the 1974 amendments to the Workmen’s Compensation Act (hereinafter referred to as “the Act”) have modified the McDonald test. Finally, I would hold that Appellant, whether or not it enjoys statutory employer status, may be joined as an additional defendant.

I.

The statutory employer defense was derived from the following provision in the Act:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Pa.Stat.Ann. tit. 77, § 52 (Purdon 1952).

The Supreme Court, in McDonald, construed this section as requiring five criteria to be satisfied in order to give rise to the status of statutory employer. They are:

(1) An employer who is under contract with an owner or one in the position of an owner.
(2) Premises occupied by or under the control of such employer.
(3) A subcontract made by such employer.
(4) Part of the employer’s regular business entrusted to such subcontractor.
(5) An employe, of such subcontractor.

McDonald, 302 Pa. at 295, 153 A. at 426.

The court below, and the majority, have concluded that the McDonald requirements have Instantly been satisfied. As to the first, second, third and fifth requirements, I agree. However, the record fails to conclusively establish the fourth requirement, to wit, that Appellant entrusted a part of its regular business to the Appellee Ghrist’s employer, Mar Ray, Inc.

Where, as here, a party moves for summary judgment on the ground that it is a statutory employer, and relies on a contractual obligation to sustain that status, it has the burden of proving: (a) the contractual obligation in question; (b) that its regular business consists, inter alia, of performing the work required by such contractual obligation; and (c) that part of such work was entrusted to the subcontractor employer of the injured employee. See e. g., Jamison v. Westinghouse Electric Corporation, 375 F.2d 465 (3d Cir. 1967), Stipanovich, 210 Pa.Super. at 106, 231 A.2d at 898. Viewed as a whole, the record before us is inconclusive both as to Appellant’s contractual obligation and as to whether the work entrusted to Mar Ray, Inc., i. e., all the carpentry work, falls within the ambit of Appellant’s regular business.

Although, the contract between Appellant and the owner of the premises, in Article 2 thereof provides:

The Contractor (Appellant) shall perform all the work required by the Contract Documents . . . (emphasis added)

the Contract Documents have not been made part of the record. On the other hand, Appellant did make part of the record the affidavit of its Vice-President, which states, in pertinent part:

.. . The Construction . . . required the special skill of carpenters and accordingly . . . (Appellant) entered into a sub-contract agreement with Mar Ray, Inc.

Moreover, the record contains nothing to indicate that carpentry work was a part of Appellant’s regular business or that Appellant regularly employed carpenters. Resolving all doubts against Appellant, the moving party, as we must, I conclude, contrary to the view of the court below and the majority here, that the fourth McDonald requirement presents an issue of fact which must be presented to the trier of facts, at trial. See e. g., Jamison, 375 F.2d at 468.

II.

Assuming, arguendo, that the record warranted a finding that Appellant did entrust a part of its regular business to Mar Ray, Inc. and, therefore, was entitled to statutory employer status under the McDonald criteria, I believe the Legislature, by means of the 1974 amendments to sections 461 and 462, essentially added a sixth requirement to the McDonald formulation which, as thereby enlarged, bars Appellant from asserting a statutory employer defense.

In undertaking an analysis of sections 461 and 462, as amended, in the context of the entire Act, we must be mindful of certain well established principles of statutory construction. A statute must be construed and applied so as to ascertain and to effectuate the legislative intent and, whenever possible, must be read consistently so as to give effect to all its provisions. Pa.Cons.Stat.Ann. tit. 1, § 1921(a) (Purdon Supp.1981-82); Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). If a statute contains irreconcilable provisions, special provisions shall prevail over general provisions and those last in order of date shall prevail over earlier provisions. Pa.Cons.Stat.Ann. tit. 1, §§ 1933 & 1934 (Purdon Supp.1981-82). Words which are clear and free from all ambiguity are not to be disregarded under the pretext of pursuing their spirit. Pa.Cons.Stat. Ann. tit. 1, § 1921(b) (Purdon Supp.1981-82). Finally, with specific reference to the Act, it is axiomatic that, since it was it was designed to benefit employees injured in work-related accidents, it should be liberally construed so as to achieve its remedial purpose. Workmen’s Compensation Appeal Board v. Overmyer Mold Company, 473 Pa. 369, 374-75, 374 A.2d 689, 691 (1977); Workmen’s Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1976); Billick v. Republic Steel Corp., 214 Pa.Super. 267, 257 A.2d 589 (1969).

Section 461 as amended, reads as follows:

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor.
For purposes of this subsection, a person who contracts with another (1) to have work performed consisting of (i) the removal, excavation or drilling of soil, rock or minerals, or (ii) the cutting or removal of timber from lands, or (2) to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor .... (emphasis added)

and Section 462, as amended, provides:

Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation of such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor.. . (emphasis added)

In order to ascertain and to effectuate the legislative intent of these amendments and to give effect to all provisions of the Act as affected thereby, it is necessary to compare the foregoing provisions with the pertinent prior language of the Act.

Section 462, prior to the 1974 amendment, in pertinent part provided as follows:

... an employer who permits the entry, upon premises occupied by him or under his control, of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be conclusively presumed to have agreed to pay to such laborer or assistant compensation in accordance with the provisions of article three, unless the employer shall post ... a notice of his intention not to pay such compensation ...; any such laborer or assistant ... shall be conclusively presumed to have agreed to accept the compensation ... in lieu of his right of action under article two, unless he shall have given notice ... of his intention not to accept such compensation .... And in such cases, where article three binds such employer and such laborer or assistant, it shall not be in effect between the intermediate employer or contractor and such laborer or assistant, unless otherwise expressly agreed, (emphasis added)

Act of June 2, 1915, as amended, Pa.Stat.Ann. tit. 77, § 462.

A comparison of former section 462, with sections 461 and 462 as amended in 1974, discloses a significant similarity. Under the former section, a general contractor was conclusively presumed to have agreed to pay compensation to his subcontractor’s employees, and was therefore afforded statutory employer status pursuant to section 52 of the Act, unless the general contractor took all the necessary steps to manifest his intention not to pay such compensation. In those instances where the general contractor satisfied the “unless clause,” by effectively rejecting elective compensation, he was liable, in an action at law, for negligent injury of a subcontractor’s employee notwithstanding that the employee received compensation from his direct employer, the subcontractor. Gallivan v. Wark Co., 288 Pa. 443, 136 A. 223 (1927).

In like manner, sections 461 and 462, as amended in 1974, provide that a general contractor shall be liable for the payment of compensation to employees of subcontractors unless the subcontractor secures the payment thereof. This language, which I consider to be clear and free of ambiguity, may not be disregarded. The legislative intent, as manifestly demonstrated thereby, mandates the conclusion that, where the subcontractor has secured the payment of compensation, the general contractor does not become liable for the payment of compensation to the subcontractor’s employees. It therefore follows, logically, equitably and on the basis of well established legal precedent, that where the “unless clause” is satisfied under sections 461 and 462 as currently drawn, the general contractor, as under former section 462, is liable, in an action at law, for negligent injury of his subcontractor’s employee notwithstanding that the employee received compensation from his direct employer. Thus we have the converse of the situation under prior section 462, whereby, when the general contractor did not satisfy the “unless clause,” the subcontractor was relieved of liability to pay compensation but retained his common law liability. Robinson v. Atlantic Elevator Co., 298 Pa. 549, 148 A. 847 (1930). To paraphrase Robinson.

the general contractor is relieved from paying compensation for any injury received by the subcontractor’s employees in connection with the particular job under subcontract; the burden rests with the direct employer. The general contractor, under 462, does not move a step from his common law position

Id., 298 Pa. at 553, 148 A.2d at 848 (emphasis added).

In the instant case, the record clearly demonstrates that Appellee Ghrist’s employer, Mar Ray, Inc., was the subcontractor primarily liable for the payment of compensation and that it “secured its payment as provided for in this act.” The Sub-Contract Agreement between Mar Ray, Inc., as “Subcontractor,” and Appellant, as “Contractor,” attached as an Exhibit to Appellant’s Answer and New Matter, provides:

Subcontractor to produce certificate of insurance proving Workmen’s compensation and liability coverage .. .

Furthermore, Appellant’s Brief in support of its motion for Summary Judgment (R. 109a) frankly acknowledges that “plaintiff (Ghrist) was paid workmen’s compensation by his immediate employer, Mar Ray Construction Company.”

Given the foregoing facts, and the statutory language applicable when this cause of action arose, we are compelled to conclude that Appellant was not the statutory employer of Appellee Ghrist.

The majority concedes that “rules of statutory construction require that every statute be construed, if possible, to give effect to all of its provisions.” (At 759-760). Nevertheless, it fails to give effect to the “unless clauses” in sections 461 and 462, as amended in 1974, because it seemingly finds these clauses in conflict with section 52. I respectfully disagree.

Sections 52, 461 and 462 can and ought to be read together. Such a reading, heretofore, of sections 52 and former 462, gave rise to the McDonald requirements. Such a reading, now, requires that a sixth requirement be added to the McDonald formulation:

Such subcontractor has failed to secure the payment of compensation, as provided for in the Workmen’s Compensation Act, for such employe.

By thus reading sections 52, 461 and 462, we give effect to all of the provisions of the Act and we exercise the requisite care in construing section 52 so as not to “casually convert it into a shield behind which negligent employers may seek refuge.” Stipanovich, 210 Pa.Super. at 106, 231 A.2d at 898.

In reaching the opposite conclusion, the majority has relied on cases decided prior to the 1974 amendments. These cases, as explicated by Judge Barbieri in Pennsylvania Workmen’s Compensation and Occupational Disease, extended negligence immunity to statutory employers in spite of the fact that the direct employer was insured. As Judge Barbieri stated:

The reason . . . cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.

Barbieri, supra, vol. 1, § 4.09(3) (footnotes deleted) (citing cases) (emphasis added). This very rationale is expressly set forth in Robinson, 298 Pa. at 552-53, 148 A. at 848, as follows:

The Legislature, to insure the payment of compensation to employees . .. created a contractual relation between the general contractor . . . and the employees of his subcontractors. He was made the statutory employer of all such employees . . . and was required to pay compensation for injuries to such employees .. . The statutory employer’s benefit for this burden comes from immunity from a common-law action by employees for injuries sustained in connection with the work.

Id., 298 Pa. at 552-53, 148 A. at 848 (emphasis added). Since 1974, however, the basis for the immunity has been eliminated since the amendments specifically provide that the general contractor is not liable, even in a reserve status, if the subcontractor has secured the requisite payment of compensation. In enacting these amendments, our Legislature has chosen to follow those jurisdictions which do not allow general contractors, who have no liability for workmen’s compensation, to escape common law liability as well. E. g., Merritt Chapman & Scott Corporation v. Fredin, 307 F.2d 370 (9th Cir. 1962); Whiting v. Farnsworth & Chambers Co., 293 F.2d 45 (10th Cir. 1961); Kozoidek v. Gearbulk Ltd., 471 F.Supp. 401 (D.Md.1979); Ryan v. New Bedford Cordage Co., 421 F.Supp. 794 (D.Vt.1976).

The result effected by the 1974 amendments is sound and eminently fair. As pointed out in Robinson, supra, the pre-1974 immunity granted the general contractor was the benefit accorded to him for assuming the compensation burden, even if only on a reserve basis. Where, however, as under sections 461 and 462 and the instant facts, such a burden is never assumed, neither logic nor equity support a continued grant of immunity. To hold otherwise, as aptly pointed out by the trial court, is tantamount to putting a general contractor in the position of “having its cake and eating it, too” and constitutes unwarranted judicial legislation.

III.

Finally, Appellant contends, and the majority agrees, that by virtue of Appellant’s status as statutory employer, its joinder as an additional defendant is barred by section 481 of the Act. I disagree.

As noted above, and for the reasons there set forth, a general contractor, such as Appellant, relieved from liability to pay compensation to his subcontractor’s employer due to the securing of same by the subcontractor, is not a statutory employer, is outside the Act and is as susceptible to joinder as any other third party.

Even if, however, the instant facts supported Appellant’s claim to statutory employer status, section 481 would not bar joinder. That section provides, in pertinent part:

In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, . . .

Pa.Stat.Ann. tit. 77, § 481(b) (Purdon Supp.1981-82) (emphasis added). The words of the statute are “clear and free from all ambiguity” and they make no reference to a statutory employer. The majority, however, relying upon Heffe-rin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977) concludes that to find that a statutory employer “is not the ‘employer’ referred to in section (481) would frustrate the legislative intent as enunciated in Hefferin.”

I respectfully suggest that the majority misreads Hefferin and, as a consequence, impermissibly disregards the letter of the statute in order to “pursue its spirit.” Pa.Cons.Stat. Ann. tit. 1, § 1921(b) (Purdon Supp.1981-82). Hefferin involved an attempt by the defendant, a third party, to join the plaintiff’s direct employer, as an additional defendant. No statutory employer was involved. It was in that context that the Hefferin court wrote, as noted by the majority herein:

The Supreme Court has made it clear that the purpose of . .. section [481(b)] of the Act was to . . . close to .. . third parties any recourse against the employer in tort for negligence.

Id., 247 Pa.Super. at 369, 372 A.2d at 871 (emphasis added). To extend section 481 to apply to a statutory employer serves only to compound the inequities thereof. I do not believe its clear language necessitates, nor even justifies, such a result.

In order to find refuge with section 481, Appellant must establish that it was Appellee Ghrist’s employer, since it obviously cannot come within any other of the therein enumerated categories granted immunity from liability to a third party.

To determine whether Appellant can successfully claim to be Ghrist’s employer, we look to the Act in its entirety, since we are constrained to give effect to all its provisions. Pa. Cons.Stat.Ann. tit. 1, § 1921(a) (Purdon Supp.1981-82). In so doing, we find that the Act defines “employer” as follows:

The term “employer,” as used in this act, is declared to be synonymous with master . . .

Pa.Stat.Ann. tit. 77, § 21 (emphasis added). This Court, in considering the foregoing definition, has stated.

The Workmen’s Compensation Act, 77 P.S. §§ 21, 22, declares the terms “employer” and “employee”, as there used, to be synonymous with “master” and “servant.” The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done.

Rodgers v. P-G Publishing Co., 194 Pa.Super. 207, 166 A.2d 544, 546 (1961). See also Coleman v. Board of Education, 477 Pa. 414, 421-22, 383 A.2d 1275, 1279 (1975); Frederico Granero Co. v. Workmen’s Compensation Appeal Board, 43 Pa.Cmwlth. 308, 402 A.2d 312 (1979).

As the Court of Appeals for the Third Circuit, relying upon Zimmer v. Casey, 296 Pa. 529, 146 A. 130 (1929), has appropriately noted:

insofar as the employment relationship is concerned, the (Pennsylvania Workmen’s Compensation Act) must be liberally construed in order to effectuate its remedial purpose, but its scope cannot be extended in a manner which would destroy either the employee’s common-law rights against third persons or the common-law conception of third persons.. . . The essence, indeed the very legislative definition, of the employer-employee status is the master-servant relationship.

Mays v. Liberty Mutual Insurance Company, 323 F.2d 174, 177 (3d Cir. 1963) (citation omitted).

The instant record fails to disclose any factual basis for finding that Appellant was the employer of Appellee Ghrist. There is, therefore, no legal impediment to the joinder of Appellant as an additional defendant.

I would therefore affirm the trial court’s denial of Appellant’s Motion for Summary Judgment.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, et seq.
      Appellant’s motion followed its assertion of this claim in its Answer to the New Matter filed by appellee, Paul Wolk. In New Matter, Wolk joined appellant as an additional defendant in order to protect his right to contribution or indemnity. The question of whether appellant can be so joined will be discussed at the conclusion of this opinion.

      . 77 P.S. § 52, as amended.

      . As amended in 1974 § 302 provides in relevant part:
      (a) A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor. 77 P.S. § 461.
      * * # * if: #
      (b) Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an empiloye or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor. 77 P.S. § 462.

      . This appeal from an interlocutory order is properly before us upon certification of the lower court pursuant to 42 Pa.Stat.Ann. § 702(b) (Purdon 1981).

      . Pa.Stat.Ann. tit. 77, § 52. For clarity, this opinion shall cite only to the pertinent Purdon’s sections, rather than to the Public Law sections.

      . Pa.Stat.Ann. tit. 77, §§ 461-462 (Purdon Supp. 1981-82).

      . Pa.Stat.Ann. tit. 77 § 461 (Purdon Supp.1981-82).

      . Pa.Stat.Ann. tit. 77 § 462 (Purdon Supp. 1981-82).

      . Prior § 461 is irrelevant to this discussion since it did not deal with statutory employers.

      . Even if, as the majority implies, §§ 461 and 462 on the one hand, and § 52 on the other, are irreconcilable, the result is the same since §§ 461 and 462 are special provisions and last in order of date and therefore prevail over § 52. Pa.Cons.Stat.Ann. tit. 1, §§ 1933 & 1934 (Purdon Supp. 1981-82).

      . The text of this treatise was compiled prior to the 1974 amendments.

      . Pa.Stat.Ann. tit. 77, § 481 (Purdon Supp.1981-82).

      . The potential for inequity encompassed within section 481 has caused at least one member of our Court to urge its reconsideration by the Legislature. See Arnold v. Barbonus, 257 Pa.Super. 110, 115, 390 A.2d 271, 273 (1978) (Spaeth, J., concurring and dissenting). I share Judge Spaeth’s disaffection with § 481 and therefore am unwilling to extend its operative effect further than its language, strictly construed, expressly requires.


author: DiSALLE, Judge:

text:
    434 A.2d 767
    COMMONWEALTH of Pennsylvania, Appellant, v. Kevin Douglas HENRY.
    Superior Court of Pennsylvania.
    Argued March 9, 1981.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Jan. 11, 1982.

      Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellant.
    Francis M. Walsh, Assistant Public Defender, Norristown, for appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   DiSALLE, Judge:

This is an appeal by the Commonwealth from the lower court’s dismissal of the charges against appellee, Kevin Henry, under Pa.R.Crim.P. 1100(a)(2).

On September 9, 1979, and September 13, 1979, criminal complaints were filed against appellee charging him with three burglaries and other ancillary offenses. Appellee’s run dates, therefore, were March 7 and 11, 1980. On September 18, 1979, a preliminary hearing was held, and all charges were returned to court. Appellee posted bail and on the appropriate bail form gave his address as 211 Simpson Road, Ardmore, Pennsylvania. On October 31, 1979, appellee appeared in court and waived his arraignment. On December 6, 1979, at the call of the trial list, appellee’s counsel stated that they were prepared for trial. In fact, appellee was incarcerated in the State of Delaware, unavailable for trial. The Commonwealth was unaware of appel-lee’s incarceration because appellee had failed to give proper notice of his new address in Delaware. Pa.R.Crim.P. 4013(c). Not until February 6, 1980, when appellee’s case was called for trial, did the Commonwealth learn of appellee’s unavailability. On that date, a bench warrant was issued for appellee. On February 19, 1980, a request for temporary custody of appellee was filed with the Delaware authorities. 42 Pa.C.S.A. 9101, et seq. The next day the Commonwealth filed for and was granted an extension to commence trial 120 days from the time appellee was apprehended. On May 1, 1980, the Commonwealth received custody of appellee. On July 24, 1980, appellee’s case was called for trial. The lower court found that the Commonwealth had failed to comply with Pa.R.Crim.P. 1100 and ordered the case dismissed.

The Commonwealth contends that although 319 days elapsed between the date when the first complaint was filed against appellee and the date of his trial, the proceedings were nevertheless timely because appellee was unavailable for trial for a period of 147 days. Pa.R.Crim.P. 1100(d)(1). We agree. Although appellee was not available for trial at the call of the list on December 6,1979, his counsel knowingly misrepresented that appellee was available. Had the Commonwealth been informed at that time that appellee was incarcerated in Delaware, it could have begun proceedings to have appellee returned to the Commonwealth. Because the Commonwealth was misinformed, the period between the call of the list and appellee’s return to Montgomery County may not be charged against the Commonwealth. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

We find, therefore, that appellee was unavailable for trial from December 6,1979 until May 1,1980, a total of 147 days. It follows, therefore, that appellee was brought to trial 172 days after the first complaint was filed against him, which is in compliance with Pa.R.Crim.P. 1100.

Order reversed and case remanded for trial.

      . Pa.R.Crim.P. 1100(a)(2) provides:
      “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

      . Pa.R.Crim.P. 4013(c) provides:
      “When a person is admitted to bail, the conditions of the bail bond shall be that such person will:
      * * * * * *
      (c) give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change.... ”

      . The lower court properly held this extension to have been improperly granted because neither appellee nor his counsel had been served with the Petition for an Extension of Time. Pa.R.Crim.P. 1100(c).

      . Pa.R.Crim.P. 1100(d)(1) provides:
      “(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      “(1) The unavailability of the defendant or his attorney....” (emphasis added).

      . As noted, appellee’s failure to notify the appropriate authorities of his change of address also contributed to the delay.