author: FORD ELLIOTT, Judge.

text:
    615 A.2d 743
    John S. REDINGER, and Earline Redinger, His Wife, Appellants, v. CLAPPER’S TREE SERVICE INC. and Dr. and Mrs. A. L. Garver Memorial Y.M.C.A.-Y.W.C.A. and Pennsylvania Electric Co.
    Superior Court of Pennsylvania.
    Argued April 1, 1992.
    Filed Oct. 30, 1992.

      Samuel H. Geld, Altoona, for appellants.
    Anthony W. Hinkle, Pittsburgh, for appellee Garver Memorial.
    Before KELLY, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge.

Appellants appeal from the granting of summary judgment by the trial court. Briefly, the trial court was of the opinion that appellants’ suit against appellee Y.M.C.A. was barred by the Recreation Use of Land and Water Act (hereinafter RULWA), 68 P.S. § 477-1 et seq. Plaintiff was injured by a falling tree limb while attending his son’s Little League baseball game at a diamond constructed upon appellee Y.M.C.A.’s land. Appellee Clapper’s Tree Service had been hired by appellee Y.M.C.A to care for the trees on the property and to remove rotted and/or dead trees. The tree limb in question broke off and fell after it made contact with overhead power lines owned by appellee Pennsylvania Electric Company. The order under review granted summary judgment only as to appellee Y.M.C.A

No fee was charged appellant husband to enter upon the land. The land in question was situated in a residential area of Roaring Spring, Pennsylvania, and occupied approximately an entire town block. The record is not entirely clear, but it appears that the baseball field occupied most, if not all, of the plot of land.

The core issue presented is whether the nature of the land and the land’s location in a residential area take the property out of the purview of the RULWA, 68 P.S. § 477-6(1). A secondary issue is whether allegedly willful and malicious conduct on the part of appellee Y.M.C.A. falls under one of the exceptions to the RULWA. For the reasons which follow, we believe that appellant husband’s injury occurred on a part of appellee Y.M.C.A’s land that is of a type contemplated by the RULWA and that the conduct of appellee Y.M.C.A. was not willful and malicious; therefore, we will affirm the order entered July 3, 1991, granting summary judgment.

We begin our analysis by reiterating the standard to be employed when considering a motion for summary judgment:

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

Pa.R.C.P. 1035(b). See also Klineburger v. Maritrans, 404 Pa.Super. 490, 591 A.2d 314 (1991), allocatur denied, 529 Pa. 635, 600 A.2d 954 (1991), cert. denied, — U.S. —, 112 S.Ct. 1762, 118 L.Ed.2d 425 (1992). When reviewing a grant of summary judgment, we should not disturb the trial court’s ruling unless there has been either an error of law or a manifest abuse of discretion. Hackenberg v. SEPTA, 384 Pa.Super. 335, 558 A.2d 860 (1989), allocatur granted, 524 Pa. 597, 568 A.2d 1247 (1989), affirmed, 526 Pa. 358, 586 A.2d 879 (1991).

Pennsylvania’s RULWA is virtually identical to the proposed model act:

§ 477-1. Purpose; liability
The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.
§ 477-2. Definitions
Ar, used in this act:
(1) “Land” means land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.
(2) “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) “Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
§ 477-3. Duty to keep premises safe; warning
Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
§ 477-4. Assurance of safe premises; duty of care; responsibility, liability
Except as specifically recognized by or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose.
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Assume responsibility for or incur liability for any injury to persons or property caused by an act of omission of such persons.
§ 477-5. Land leased to State or subdivision
Unless otherwise agreed in writing, the provisions of sections 3 and 4 of this act shall be deemed applicable to the duties and liability of an owner of land leased to the State or any subdivision thereof for recreational purposes.
§ 477-6. Liability not limited
Nothing in this act limits in any way any liability which otherwise exists:
(1) For wilful [sic] or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.
§ 477-7. Construction of act
Nothing in this act shall be construed to:
(1) Create a duty of care or ground of liability for injury to persons or property.
(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

As of 1988, 48 states had enacted some form of law limiting the liability of the landowner to those who come upon the property for a recreational purpose. Approximately 20 states have enacted essentially the model act. Nevertheless, in spite of the apparent uniformity of legislation, we observe a widespread conflict among the jurisdictions as to exactly what type of land is intended to be covered by the liability limitation:

The case interpretations emphasize that the type of areas protected are those which are natural, unimproved, and undeveloped. Louisiana uses the term ‘type normally encountered in true outdoors,’ which does not include playground-slide in town park, a recreational area within a populated city adjacent to a much traveled lakeshore drive, a civic center, or a wooded area in the city administered by the park district. In California the court held that the immunity was only for unaltered natural condition areas. Other areas held by case law to be under the statute include tracts of woodland and wetlands, gravel pits, abandoned mine shaft, dirt bike track parallel to railroad, concrete drainage ditch, and an improved portion of property, such as a private roadway. And, in the other direction, Boileau v. DeCecco held that amending the New Jersey statute by inserting the word ‘premise’ did not enlarge the protected class of landowners to include homeowners in suburbia and did not confer immunity on an occupier of premises in a residential setting. However, a 1985 Michigan Appeals case protected homeowners in their backyards. The Delaware court held that the statute did not apply to urban or residential areas improved with pools, tennis courts and the like; but the Ohio court included residential pools within the statute. However, Michigan extended application of Recreational Land Users Act to city property located in urban areas and then reversed itself in 1987; and, a 1987 Nebraska case in a power district substation site held its law applicable to urban as well as rural areas. A 1984 Louisiana case held that playground bleachers were within the statute, but a 1986 Connecticut case held to the contrary on football stadium bleachers. In an earlier Oregon situation the court held that the premises of a church on which softball was being played was not included because it was not ‘agricultural’ land, and a school was not covered when a child was injured while playing near a football field. However, in two 1986 cases, it was held that a baseball field was included within the statute. Playgrounds have been held not within the statute; however, a vacant lot used for informal recreation was held within the statute. The courts have held that an oil well pump site where young children played, a grass strip between sidewalk and trees in city park, and a street were not within the recreational user statute, nor were areas, although used for recreation, which were in a populous, urban, or residential area. Application of the statute to injuries occasioned on roadways seems to vary with the nature of the travel and road and the status of the traveler.

van der Smissen, Betty, Legal Liability and Risk Management for Public and Private Entities, Anderson Publishing Company, 1990, pp. 207-209 (footnotes omitted).

In spite of its conciseness and apparent simplicity, the RULWA has managed to weave a tortured tapestry of decisional law in a multitude of jurisdictions in which it has been enacted. At the heart of the dispute is the ascertainment of what nature of land is contemplated as being removed from liability under the Act. This thread of conflicting case law has not left our own Commonwealth untouched.

For instance, in Lowman v. Indiana Area School District, 96 Pa.Cmwlth. 389, 507 A.2d 1270 (1986), an infant seated in the bleachers at a high school baseball game was struck by an overthrown baseball and severely injured. In finding no liability, the court held that a baseball field as well as its appurtenant structures (fences, bleachers, backstop, etc.) was within the definition of land as defined under and intended by the RULWA. Six years later, a panel of the same court decided in Seiferth v. Downingtown Area School District, 145 Pa.Cmwlth. 562, 604 A.2d 757 (1992), that a lacrosse field was not within the definition of land under the RULWA. In Seiferth, a student lacrosse player was injured during practice when she fell because of a hole on the lacrosse field. In reaching its diametrically opposed finding of liability, the court never mentioned the holding in Lowman. The court instead ruled that the lacrosse field’s status as an improvement to the land removed it from the RULWA. However, in fairness to the Commonwealth court, we note that the latter panel was no doubt influenced by intervening decisions of our supreme court.

Our supreme court first addressed the scope of the immunity provisions of the Act in Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986). In Rivera^ a young boy drowned in the indoor swimming pool owned and operated without fee by the defendant seminary. In holding that liability was not barred by the RULWA, the supreme court, stated,

The Recreation Use Act is therefore designed to encourage the opening up of large, private land holdings for outdoor recreational use by the general public by limiting the liability of the landowner. Considering that purpose, we believe the Legislature intended to limit the meaning of the words ‘buildings, structures and machinery or equipment when attached to the realty’ in Section 2 of the Act, 68 P.S. § 477-2, to ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions.
The intention of the Legislature to limit the applicability of the Recreation Use Act to outdoor recreation on largely unimproved land is evident not only from the Act’s stated purpose but also from the nature of the activities it listed as recreational purposes within the meaning of the statute. Specifically, with the exception of ‘swimming,’ which may be either an indoor or outdoor sport, the recreational activities enumerated in the statute are all pursued outdoors.

Id., 510 Pa. at 15-16, 507 A.2d at 8.

In effect, the court focused on the type of land intended to be covered and the nature of the recreational activities contemplated by the Act, and determined that the Legislature intended to limit the applicability of the RULWA to outdoor recreational activities on largely unimproved land. In dissent, joined by Justices McDermott and Zappala, Chief Justice Nix took issue with what he considered to be the majority’s narrow reading of the RULWA.

Both the majority opinion and appellee maintain that the Seminary, an urban building, does not fall within the scope of the Act. The Superior Court took the contrary view and concluded that an urban building could fall within the scope of the Act.
As the Superior Court aptly noted;
There is nothing unreasonable about applying the limited liability decreed by the legislature in a uniform manner to lands, whether urban, suburban or rural, which are made available for recreational use without charge. The broad language adopted by the legislature suggests most strongly that the legislature deemed the need for recreational lands in urban centers to be as great as the need therefor in rural areas of the State.
Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 474 A.2d 605, 611 (1984).
An attempt to create an artificial exclusion to limit the owners of private property who would choose to open their lands for recreational purposes merely because the property is situated in an urban area, undercuts legislation such as the Act and frustrates the salutory [sic] purposes sought to be achieved.
Thus, because the Seminary is a building located in an urban area, it does not follow that the Seminary is not covered by the Act. Nowhere is it expressly stated in the Act that the recreational use must occur outdoors. I therefore believe it improper to create such a limitation by judicial fiat.

Id. 510 Pa. at 28-30, 507 A.2d at 16 (footnote omitted). Also in dissent, Justice McDermott, joined by the Chief Justice and Justice Zappala, focused merely on the recreational use of the land so as to afford immunity. He stated as follows:

The majority however, eschewing the clear intent of the General Assembly, ignores the obvious fact that the legislature, without comment, in plain words and intention, did not mean to exclude those who cannot walk out their back door through leafy lanes to shining lakes, from the charity of those who offer indoor swimming pools in the hot and dusty city. The argument that they are excluded because they are easily supervised is ludicrous.
There is unexpected danger inherent in all recreational activities, whether it be the wild danger of the outback or a slip on a marble floor. The whole concept of immunity is the presence of danger. To say that a pond, lake, quarry, brook or swimming pool across a city line is immune when offered free to the public, but the same in an urban area is not, however comparable in size and danger, because it has a roof, is simply whimsical. The legislature balanced danger against a benefit to a great number of people; allowing a use of facilities with immunity from liability, great and small, so that many could have, what the possible consequences for an injury to one, would make improvident to give to any.

Id., 510 Pa. at 33-34, 507 A.2d at 18.

Sifting through the various interpretations of the legislative intent of the Act as set out in the opposing views of Rivera, we are left with the conclusion that in addition to any requirements imposed directly under the RULWA, the majority holding required that in order for land to fall within the purview of the Act, it must be outdoors, largely unimproved and, inferentially, rural as opposed to urban. This gels with two policies that have been articulated as underlying the RULWA:

The first policy is the protection of the owners of large tracts of unimproved land. If a tract of land is large, the landowner will be disinclined to open it for public use because of the high costs of monitoring and maintaining the property. The RUA is intended to motivate this landowner to open his lands for public use by relieving him of the duty of monitoring and maintaining the property when the property is in public use. The size and remoteness of the property must be considered when determining whether property qualifies as land under the RUA. Large and remote tracts are expensive to monitor and maintain and, therefore, should be protected. By contrast, smaller, readily accessible tracts of land are less costly to maintain and therefore should not qualify as land under the RUA----
The second policy underlying recreational use acts is the protection of the reasonable expectations of recreational users. Under this policy, two factors should dictate whether property qualifies as land under a recreational use act. The first factor to consider is the location of the land (urban versus rural). The second factor is the extent of improvements on the land.
It is more reasonable for the recreational user to expect that land located in urban (populated) areas will be maintained, and therefore such land should not be protected by the RUA.... The more improved the property, the more reasonable it is for the user to expect that the landowner has maintained it in a safe condition.

Renwand, Sandra M., “Beyond Commonwealth v. Auresto: Which Property Is Protected by the Recreation Use of Land & Water Act?,” 49 U.Pitt.L.R. 261, 1987, pp. 277-80 (footnotes omitted). While our supreme court did not expressly state these policies in Rivera, certainly they were implicit in the rationale utilized by the majority therein.

Rivera was soon followed by Commonwealth Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986). Auresto held that the immunity afforded by the RULWA was available to the Commonwealth as well as to private landowners. The plaintiff in Auresto had been riding a snowmobile in Delaware State Forest when he struck a snow covered tree stump and was thereby injured. In holding that the RULWA barred liability, the supreme court did nothing to alter the principles of Rivera.

In the interlude between Auresto and the supreme court’s latest pronouncement on the RULWA, the Commonwealth Court and this court have grappled with this issue. In Walsh v. City of Philadelphia, 126 Pa.Cmwlth. 27, 558 A.2d 192 (1989) (Walsh I), reversed, 526 Pa. 227, 585 A.2d 445 (1991) (discussed, infra), a panel of the Commonwealth Court held that an outdoor, urban cement playground constituted land within the meaning of the RULWA. The plaintiff in Walsh I was injured when he fell because of a hole in an asphalted surface located between basketball and bocee courts. In finding immunity, the court did not focus on whether the land was urban versus rural but rather focused on the question of the use to which the playground was put finding that the playground was outdoors and used for recreation and therefore immunity applied.

In Zackhery v. Crystal Cave Company, 391 Pa.Super. 471, 571 A.2d 464 (1990), a panel of this court followed the lead of Walsh I and declared a playground which was a part of a privately developed outdoor recreational facility to be land within the purview of the RULWA even though other portions of the facility would have been excluded.

In Wurth by Wurth v. City of Philadelphia, 136 Pa.Cmwlth. 629, 584 A.2d 403 (1990), an en banc panel of the Commonwealth Court, apparently having second thoughts about the court’s decision in Walsh I, ruled that an urban playground is not per se land covered by the RULWA and remanded for additional fact finding. The court first distinguished Walsh I by noting that two judges concurred in the result only, and wrote separately to point out the vagueness of the standards drawn in Rivera and Auresto. The court went on to state that Walsh I was, therefore, without precedential value. In holding that the subject playground was not within the ambit of the RULWA, the court cited case law from other jurisdictions that interpreted similar recreational use acts and limited the application of such acts to undeveloped, open, and expansive rural and semi-rural properties, not to land in residential areas. The Wurth court went on to adopt logic akin to these cases:

This Court notes that the litany of defined ‘recreational purposes’ under the Recreation Act, while not exhaustive, supports the interpretation that the act was intended to provide immunity for landowners who donated largely unimproved land for such ‘outdoors/ purposes: hunting, fishing, hiking, camping, picknicking [sic], etc.
This Court therefore concludes that a playground is not per se land covered by the Recreation Act.

Wurth, 136 Pa.Cmwlth. at 643, 584 A.2d at 409. The Wurth court’s analysis seems to be a faithful adherence to the principle set out in Rivera. Prior to 1991, the decisional law in this Commonwealth interpreting the RULWA focused, albeit in conflicting holdings, on the type of land covered by the Act and not specifically on its recreational purpose.

However, in 1991 our supreme court had an opportunity to revisit the Act in its reversal of the Commonwealth court’s decision in Walsh I and in so doing the court appears to have abandoned Rivera’s exclusionary focus on the nature of the land in favor of one which is more inclusive and looks to the use and condition of the land covered by the Act. After Walsh II, it appears that any land no matter where situate is covered by the RULWA if used for recreational purposes; however such land may lose its immunity status if substantially improved and such improvement causes injury.

In Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991) (Walsh II), the court stated:

When a recreational facility has been designed with improvements that require regular maintenance to be safely used and enjoyed, the owner of the facility has a duty to maintain the improvements. When such an improved facility is allowed to deteriorate and that deterioration causes a foreseeable injury to persons for whose use the facility was designed, the owner of the facility is subject to liability. We do not believe that the RUA was intended by the legislature to circumvent this basic principle of tort law.

Walsh II, 526 Pa. at 238, 585 A.2d at 450-51. The court did not specifically discuss whether an urban playground was the type of land covered by the RULWA; however it determined that the playground was excluded from the immunity provisions of the Act because it was a largely improved recreational facility and the plaintiff was injured because of these improvements. Implicit in such a ruling is that an urban recreation area, if unimproved (such as a city park), could be the type of land contemplated to be covered under the Act. Walsh II appears to indicate that the supreme court has turned toward a broader definition of land under the RULWA. This majority statement seems to move closer to the dissenting views as expressed in Rivera at least as to the type of land, urban versus rural, discussed therein. However, in dissent in Walsh II, Chief Justice Nix and Justice McDermott again argued for an even broader interpretation of the act to include any land used for any recreational purpose whether improved or unimproved.

Returning to the instant case, we determine that under the authority of Walsh II, we must hold that a fenced-in baseball field in a small community is land within the meaning of RULWA. However, while generally our next inquiry would focus on whether or not this land was improved within the meaning of Walsh II such that it would be beyond the purview of the Act, we find that such an inquiry is unnecessary under the facts of this case.

We note that while appellant husband was on appellee Y.M.C.A.’s land to observe a baseball game, his injury did not arise out any improvement to the baseball field. Appellant husband’s injury was caused by a falling, decayed tree limb. Importantly, this limb came from a part of appellee Y.C.M.A’s land which remained unimproved. For this reason, we believe the section of land upon which appellant husband’s injury was occasioned was within the purview of the RULWA Moreover, under the apparent implication of Walsh II’s policy of inclusion, the fact that the land in question was a partially developed, residential tract is of no consequence; unimproved portions of it may still come under the liability limitation of the RULWA.

This holding puts us in seeming conflict with a recent decision of the Commonwealth Court. In Mills v. Commonwealth of Pennsylvania and Penn’s Landing Corporation, 145 Pa.Cmwlth. 558, 604 A.2d 755 (1992), allocatur granted, Penns Landing Corporation v. Mills (Ethel), 531 Pa. 642, 611 A.2d 714 (1992), the plaintiff was injured while attending a concert at Penn’s Landing, an urban recreational facility located along the Delaware River in Philadelphia. The court ruled that this sort of facility constituted improved land and was therefore not of the type contemplated by the RULWA and that liability was not barred. However, the concurring opinion by Judge Pellegrini indicated that the actual site of the injury was an undeveloped grass strip between the sidewalk and the street. The concurrence stated:

However, I disagree that an urban mixed use facility such as Penn’s Landing can never be covered by RULWA. Those portions of Penn’s Landing that are devoted to public recreation and require no maintenance as defined in Walsh [Walsh II], e.g., large grassy areas are within RULWA ambit just as if they were in a rural area. The purpose of the Act is to make private land open for recreational use no matter where located.

Mills, 145 Pa.Cmwlth. at 562, 604 A.2d at 757. Judge Pellegrini chose to concur because the grass strip between the sidewalk and street was not used for recreational purposes. We agree with the concurrence as to the apparent impact of Walsh II; urban or residential mixed use land is not outside of the ambit of the RULWA per se. Thus, we find that the RULWA bars liability instantly.

We find appellants’ second argument, whether allegedly willful and malicious conduct on the part of appellee Y.M.C.A falls under one of the exceptions to the RULWA, 68 P.S. § 477-6(1), easier to refute. When appellee Y.M.CA. was put on notice that some of the trees on its property were in a state of dangerous decay, appellee Y.W.C.A engaged a tree service to cut back and/or remove those trees which presented a danger. Appellants’ claim that appellee Y.M.C.A was willful or malicious in waiting four or five years from time of notice until hiring a tree service appears misplaced to us. Not only was the tree service engaged at least a month or two prior to appellant husband’s accident, but according to appellants’ brief, it apparently had worked on the very tree which caused the injury. We would characterize this sort of behavior as prudent rather than willful or malicious.

Accordingly, the order of the trial court entered July 3, 1991, granting summary judgment as to appellee Y.M.C.A, is hereby affirmed. Jurisdiction relinquished.

      . See "Public Recreation on Private Lands: Limitations on Liability,” XXIV Suggested State Legislation 150-52 (Council of State Governments, 1965).

      . van der Smissen, Betty, Legal Liability and Risk Management for Public and Private Entities, Anderson Publishing Company, 1990, p. 190.

      . In a footnote, the Rivera court stated:
      The need to limit owner liability derives from the impracticability of keeping large tracts of largely undeveloped land safe for public use. The same need does not arise in the case of indoor recreational facilities which, in contrast, are relatively easy to supervise and monitor for safety hazards. See, e.g., Harrison v. Middlesex Water Co., 80 N.J. 391, 403 A.2d 910 (1979) (New Jersey’s act applies specifically to certain enumerated outdoor activities which, ordinarily, can be accommodated only on large sized tracts of rural or semi-rural lands which are difficult to defend from trespassers and to make safe for invited persons engaging in recreational activity); Tijerina v. Cornelius Christian Church, 273 Or. 58, 539 P.2d 634 (1975) (Oregon act applies to landholdings which have recreational value but are not susceptible to adequate policing or curing of dangerous conditions). See also Barrett, Good Sports and Bad Lands: The Application of Washington's Recreational Use Statute Limiting Landowner Liability, 53 Wash.L.R. 1, 23 (1977) (“the amount of land owned by the defendant is important in determining whether the maintenance of safe conditions or adequate warning signs is practical!;] [f]air-grounds, a lakeside resort, a military reservation, and a twenty-seven

        acre pond have all been found within the intended scope of state recreational use statutes [while] an abandoned barge, a residential swimming pool, and a three-acre ball field have been held to be beyond the reach of such statutes” (footnotes omitted)).

        Rivera, 510 Pa. at 15, 507 A.2d at 8, n. 17.

      . Brief at 21.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    615 A.2d 751
    Joe LEIGHT v. Larry H. LEFKOWITZ and Eve Lefkowitz, H/W, Appellants.
    Superior Court of Pennsylvania.
    Argued June 24, 1992.
    Filed Oct. 30, 1992.

      Larry H. Lefkowitz, Philadelphia, for appellants.
    Ronald N. Diamond, Rydal, for appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge.

The sole issue on this appeal is whether service by certified mail and ordinary mail pursuant to the Rules of Civil Procedure of the Municipal Court of Philadelphia can be effected where the addressee refuses delivery, and the certified mail is returned “Unclaimed” and the regular mail is returned “Refused.” We conclude that Rule 111 of the Municipal Court Rules expressly provides to the contrary. Accordingly, we reverse the order which dismissed the petition to open a default judgment and remand for further proceedings.

The facts are not in dispute. Joe Leight brought suit in Municipal Court to recover for carpeting he had installed in the home of Larry H. and Eve Lefkowitz, husband and wife. To effect service, Leight relied upon Phila.M.C.R.Civ.P. No. 111. On September 19, 1990, Leight mailed Statements of Claim, Notices of Defense, and return envelopes postage prepaid, by certified mail and by ordinary mail, in four separate envelopes to Larry and Eve Lefkowitz, all in accordance with Phila.M.C.R.Civ.P. No. 114. On October 4, 1990, the two pieces of ordinary mail were returned to Leight by the United States Postal Service marked “Refused.” On October 5, 1990, both pieces of certified mail were returned to Leight by the Postal Service marked “Unclaimed.”

Thereafter, on October 6, 1990, Leight mailed, by ordinary mail, with a certificate of mailing, a second copy of the Statement of Claim and other enclosures, in separate envelopes to each of the Lefkowitzes. On October 10,1990, both of those second letters sent by ordinary mail were returned to Leight by the Postal Service marked “Refused.”

All of the envelopes were returned to Leight unopened, and marked either “Refused” or “Unclaimed.”

On October 24, 1990, the day of the scheduled hearing in Municipal Court, Leight took judgment by default in the sum of $4,075.89 plus costs ($89.70) against the Lefkowitzes. The default judgment was supported by an Affidavit of Service reciting the above-stated facts.

Following notice of the entry of default judgment pursuant to Phila.M.C.R.Civ.P. No. 122(a), the Lefkowitzes filed a timely Petition to Open Judgment, alleging that they had never been served with the Complaint, did not know about any lawsuit, and did not know to appear for any hearing on October 24, 1990. The Municipal Court denied the petition to open. Appeal was taken to the Court of Common Pleas. Depositions were taken. On July 17, 1991, the petition to reverse the decision of the Municipal Court and to open judgment was dismissed by the Court of Common Pleas, prompting the within appeal.

All of the proceedings leading up to the entry of default judgment in the Municipal Court depend upon proper compliance with the Rules of Civil Procedure adopted by that court. We find both Rules 111 and 120 to be implicated in this case. In pertinent part, Rule 111 provides:

Rule 111. Service of Complaints, Non-Execution Process and other Documents
A. Except as provided in below, complaints and writs of revival shall be served in the same manner as original process filed in the Court of Common Pleas and may be served by writ servers in Philadelphia or by Pennsylvania constable of a county outside Philadelphia.....
B.....
C. (1) A complaint may be served by certified mail if defendant’s last known address is a post office box, or outside the County of Philadelphia, or if a writ server has returned the complaint without being able to serve the same.....
(2) If the certified mail is returned with notation by the postal authorities that it was refused or unclaimed, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by first class mail with the return address of sender appearing thereon. Service by ordinary mail is complete if the mail is not returned to sender within fifteen days after mailing, or by the date of trial, whichever is later. Service by certified mail and first class mail may be made at the same time. (Emphasis added).

The trial court, in dismissing the petition to open judgment, declared without citation to any authority that “[i]t is axiomatic that defendants cannot repeatedly and intentionally refuse to accept service and then claim they did not receive proper service.” Opinion, Nigro, J., filed January 28, 1992, p. 3. We are constrained to disagree. The words of Rule 111 are too clear to admit of any confusion. Rule 111(c)(1) sets forth exactly how service by certified mail shall be accomplished. Where the certified mail is returned unclaimed, as is the admitted case here, the plaintiff then is afforded the right of service by ordinary mail under Section (c)(2).

The emphasized sentence contained in Section (c)(2), above, provides for the only circumstances in which service by ordinary mail is complete. It can admit of only one interpretation: When ordinary mail is returned to the sender either (a) within fifteen days after mailing or (b) by the date of trial, whichever is later, service is not complete. This is so because service is complete under the Rule only where neither of those two contingencies occur. The Affidavit of Service filed by Leight in this case establishes that the first pieces of ordinary mail were sent on September 19, 1990, and returned on October 4, 1990, a return date that is both within fifteen days and prior to the trial date of October 24, 1990. By the same token, the letters sent by ordinary mail on October 6, 1990, were both returned marked “refused” on October 10, 1990, both well within fifteen days and also prior to the October 24th trial date.

We cannot ignore the beginning provisions of Rule 111 which expressly provide for the service of complaints “in the same manner as original process filed in the Court of Common Pleas.” Phila.M.C.R.Civ.P. No. 111.A. Service on the Lefkowitzes could have been effected by a deputized sheriff in Bucks County, if service were attempted at their residence in Bensalem, or on Mr. Lefkowitz by the Philadelphia sheriff at Lefkowitz’ office on Frankford Avenue within Philadelphia County. See Pa.R.C.P. 400(a) and (d), 402(a).

These provisions for regular service under the Pennsylvania Rules of Civil Procedure are important in demonstrating that, in the case now before us, the plaintiff, Leight, was not without alternative means of pursuing his claim. As disappointing and uncooperative as the Lefkowitzes’ acts of refusing service may have been in the eyes of Leight, we are not free to misconstrue the burden which has always been on a party seeking to bring an action. It is the plaintiff who must prove service by her, or his, affirmative acts, and not the defendant by her acts of omission or rejection.

The trial court cites to only two cases in affirming the order denying the opening of judgment. It relies upon Harris v. Kaulius, 18 Pa.D. & C.3d 636 (1981) for the proposition that a refusal to accept a letter may constitute sufficient evidence of service of original process since a refusal is an intentional action by the defendant. In Kaulius, the court granted a petition to strike a judgment upon its conclusion that the designation “unclaimed” upon a letter returned by the Postal Service did not satisfy the requirement of “refused” contained in Pa.R.C.P. 2079 [service in actions against persons outside the Commonwealth, since rescinded], where the Rule provided for the right of service by ordinary mail “[i]f the letter is returned ... with notation ... that the defendant refused to accept the letter.” In relevant part, the Honorable Robert A. Freedberg observed, in Kaulius:

We agree with defendant that the notation of the postal authorities, to the effect that the letter was “unclaimed,” as opposed to “refused,” is insufficient to authorize service by ordinary mail pursuant to the cited rule. While a refusal to accept the letter may constitute sufficient evidence of service, we believe that a mere failure to claim a letter cannot be treated in the same fashion.

Harris v. Kaulius, supra at 639. Even if a “refusal” had been found in Kaulius, the most to which the plaintiff would have been entitled under the rule there at issue would have been the right to attempt alternative service by ordinary mail. The plaintiff would not have been entitled to a finding that service had been completed.

In addition to the dictum in Kaulius, the trial court relies upon Commonwealth ex rel. McKinney v. McKinney, 476 Pa. 1, 381 A.2d 453 (1977) for the proposition that “service of original process cannot be negated by refusing to accept papers.” That case, like Kaulius, is inapposite. In McKinney, our Supreme Court was called upon to consider whether jurisdiction could be exercised over a father in an interstate custody dispute, where service of a writ of habeas corpus upon the father had been attempted by the sheriff by handing the writ to the father’s wife, the child’s stepmother, who refused service. In McKinney, the majority assumed that there was no return of service by the sheriff. The McKinney majority stated that the absence of a return is not conclusive of non-service upon a court which hears facts establishing the validity of the service. McKinney, supra, 476 Pa. at 6, 381 A.2d at 455. The stepmother testified to having refused to accept the writ while having full knowledge of its contents, which information was given to her husband, the father. The father and child moved away, to an unspecified location in a neighboring state, within twenty-four hours after the attempted service of the writ. Speaking for four of the justices in an Opinion in Support of Per Curiam Order, Justice Packel announced that there was no serious question as to the husband having been given notice, and that the “reasonableness of the steps taken to give notice to the father is unquestionable.” Id., 476 Pa. at 6, 381 A.2d at 455.

In a well-reasoned concurring and dissenting opinion, then-Justice (now Chief Justice) Nix, argued that a sheriffs return, when full and complete on its face, must be conclusive and immune from attack, citing Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). Justice Nix would have found error in the trial court having permitted extrinsic evidence by the stepmother-wife indicating that she informed the father-husband of the writ, where the sheriffs return set forth: “Unable to serve [Father] after numerous tries.” McKinney, supra 476 Pa. at 10-11, 381 A.2d at 457-58.

In the case now before us, the trial court ordered that depositions be taken “on disputed issues of fact on service and acceptance of service/receipt of process.” Order, D’Alessandro, J., March 20,1991, filed March 22,1991. We find nothing in Phila.M.C.R.Civ.P. No. Ill or in the certified record of this case to justify deposition testimony. It is clear and undisputed that the attempted service by certified mail was incomplete, since in each case, the letters were returned marked “Unclaimed.” It is equally clear that the service by ordinary mail, pursuant to Rule lll.C.(2), was incomplete, since each of the letters sent by ordinary mail were returned to the sender marked “Refused” within fifteen days of mailing and prior to the hearing on October 24, 1990.

Where service pursuant to Rule lll.C.(l) and (2) cannot be effected, the rule is very clear as to what steps a plaintiff must then take. Section 111.A. requires that, when service is not completed under subsection C, “complaints and writs or revival shall be served in the same manner as original process filed in the Court of Common Pleas.” (emphasis added). Leight, the plaintiff, did not even attempt to do this.

The default judgment was entered presumably due to the Lefkowitzes failure to appear at the hearing scheduled for October 24,1990. There is absolutely nothing in the record to support a finding that the defendants had any actual knowledge that a hearing would be held on October 24, 1990. The defendants are being punished, not for failure to appear at a hearing about which they had no knowledge but rather, for having refused to accept delivery of certain pieces of certified and regular mail. We are unaware of any statute or case law, and the plaintiff/appellee has not referred us to any, which makes the intentional refusal to accept pieces of mail from the United States Postal Service appropriate grounds for imposing a default judgment.

Because we conclude that service was not completed, we must also find that the Rules of the Municipal Court expressly prohibit the entry of a default judgment. Phi-la.M.C.R.Civ.P. No. 120 provides, in pertinent part:

Rule 120. Dismissals — Failure to Appear.
a. The Court shall mark the claim “No Service — Dismissed without Prejudice” against any defendant who is not served.

The default judgment entered October 24, 1990, depended solely upon the Affidavit of Service sworn to by Leight’s counsel on October 18,1990, and filed of record on October 29, 1990. On its face, it is clear that service had not been completed. There was only one ministerial act that could have been properly taken, based upon that affidavit. Pursuant to Rule 120.a., the claim should have been marked “No Service— Dismissed without Prejudice.” Thereafter, the plaintiff would have remained free to effect service pursuant to Pa.R.C.P. 400(a) and (d), and 402(a).

Because service had not been completed, the Lefkowitzes were clearly entitled to have the judgment opened. The trial court’s denial of that petition to open was error, as a matter of law. Accordingly, we reverse and remand with directions that the judgment be opened and the claim be marked “Dismissed without Prejudice” due to a lack of service upon the defendants.

Order reversed and remanded with directions. Jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    615 A.2d 755
    Joseph James BOWMAN and Daria Shaker Bowman, Appellants, v. MEADOW RIDGE, INC., Guidi Homes, Inc., Weichert Realtors and Barry Starke, Appellees.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed Nov. 2, 1992.

      Richard F. Stem, Jenkintown, for appellants.
    Samuel B. Hornstein, Doylestown, for Weichert & Starke, appellees.
    Before ROWLEY, President Judge and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Bucks County which sustained appellees’ amended preliminary objections and dismissed appellants’ complaint. This case arises out of the purchase of a single family residence by appellants, James and Daria Bowman, through appellees, Weichert Realtors and Barry Starke, the seller’s broker and agent. We affirm.

The record reveals the following: In their complaint, the Bowmans allege that they were induced to purchase their new residential dwelling by the representations of Barry Starke, the seller’s agent acting through Weichert Realtors, the seller’s real estate broker. Appellants contend that Starke intentionally and fraudulently misrepresented to them that they were purchasing the premises for the lowest price for which that particular model of house had sold, when, in fact, they subsequently discovered that the same model had previously sold for a lower price. The Bowmans purchased their home for $158,900.00, and the same model had previously sold for as low as $155,900.00. The Bowmans contend that they would not have purchased the home but for Starke’s misrepresentation.

Starke and Weichert Realtors filed preliminary objections in the nature of a demurrer, citing Paragraph 27 of the Agreement of Sale Meadow Ridge at Rocky Meadows which provided:

ENTIRE AGREEMENT: This is the entire Agreement between the parties, and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever which are not herein referred to or incorporated. In entering into this Agreement, Buyer has not relied upon any represented tion, claim, advertising, promotional activity, brochure or plan of any kind made by Seller or Seller’s agents of employees unless expressly incorporated or stated in this Agreement. All amendments, supplements or riders hereto, if any, shall be in writing and executed by both parties. (Emphasis added.)

Prior to argument or briefing on the preliminary objections, appellees filed amended preliminary objections which, in addition to the aforementioned demurrer, included a motion for a more specific pleading. By order dated August 15, 1991, the lower court sustained appellees’ amended preliminary objections and dismissed appellants’ complaint.

Herein, appellants question: 1) Did the lower court err in ruling on amended preliminary objections when they were filed without the consent of appellants and without leave of court in violation of Pa.R.C.P. 1033; 2) Did the lower court err in ruling that the integration clause in the Agreement of Sale, to which appellees were not parties, protects appellees from liability for their intentional and fraudulent misrepresentations; 3) Did the lower court err by not finding that the fraud of Starke vitiated the integration clause; 4) Did the lower court err in ruling that fraud had not been pleaded with sufficient particularity; and 5) Did the lower court err in not permitting appellants to amend their complaint to cure any possible defects?

First, we will address appellants’ complaint that it was error for the lower court to rule upon appellees’ amended preliminary objections. Appellants are correct in their assertions that all preliminary objections should be raised at one time, Pa.R.C.P. 1028(b), and that amendment of a party’s pleading is permitted only by consent of the adverse party or by leave of court, Pa.R.C.P. 1033. However, appellees filed their amended preliminary objections before any action was taken on their original preliminary objections, and their filing of the amended motion did not delay the proceedings below. Thus, all of appellees’ preliminary objections were addressed by the lower court at one time, and appellees complied with the purpose of Pa.R.C.P. 1028, i.e. reduction of the number of dilatory steps taken by a defendant prior to filing an answer. See Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963). In addition, the lower court may on its own motion, permit or require amendment of a pleading. Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 357, 423 A.2d 1292, 1295 (1980). By ruling on appellees’ amended preliminary objections, the lower court, in effect, permitted the amendment on its own motion. We find no error in the court’s ruling upon the amended preliminary objections.

Second, appellants complain that the lower court erred when it ruled that the integration clause of the sales agreement between appellants and Meadow Ridge, Inc., also protected appellees who were not parties to the agreement. Although neither this court nor our Supreme Court has expressly ruled upon this issue, we have previously permitted the seller’s real estate broker and agent to contend that the purchaser’s fraudulent misrepresentation action is barred by the integration clause of the sales agreement. See Myers v. McHenry, 398 Pa.Super. 100, 580 A.2d 860 (1990) (broker’s misrepresentations properly admitted, despite integration clause in sales agreement, where well’s flow rate was not readily ascertainable); Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979) (broker’s misrepresentation properly admitted, despite integration clause, where termite damage was not reasonably apparent). Likewise, we presently will entertain appellees’ assertion that appellants’ fraudulent misrepresentation action is barred by the integration clause of the sales agreement, even though appellees, as broker and agent for the sellers, were not parties to the sales agreement.

We permit such a defense by appellees, even though they are not parties to the contract, because appellants expressly stated in the contract that they did not rely upon any representation of appellees. It is well settled that the elements of fraud are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. Myers, 398 Pa.Super. at 109, 580 A.2d at 865; Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1992), quoting Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 442, 51 A.2d 759, 763 (1947). Appellants herein specifically represented in their contract that: “In entering into this Agreement, Buyer has not relied upon any representation, claim, advertising, promotional activity, brochure or plan of any kind made by Seller or Seller’s agents or employees unless expressly incorporated or stated in this Agreement.” In other words, appellants expressly stated that they did not rely upon Starke’s representations or promotional activity. Such a disclaimer destroys the allegations of reliance in appellants’ complaint. Cf., LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978) (reliance on misrepresentation concerning water damage to sun-deck and cellar vitiated by integration clause where the defects were ostensible).

Clearly, absent reliance upon the alleged misrepresentation, there can be no action sounding in fraud against the maker of the statement or anyone else. Moreover, logic dictates that if the seller may enforce the integration clause, his agent should also be permitted to enforce the disclaimer. To rule otherwise would permit appellants, in an action against the seller’s agents, to allege that they relied upon the representations of the seller’s agents, while, in an action against the seller, such allegations would be barred.

That is not to say that appellants cannot pursue an action for fraud against the seller or his broker and agent. However, in order to prevail, appellants must demonstrate that evidence of the alleged fraudulent misrepresentation is not barred by the parol evidence rule. Thus, we are faced with appellants’ third argument, wherein they contend that since they were fraudulently induced to purchase the property by Starke’s misrepresentation, the parol evidence rule is inapplicable to prevent the admission of the oral statements of Starke.

In LeDonne, supra, this court noted the following definition of the parol evidence rule:

Where the alleged prior or contemporaneous oral representations or agreements concern a subject which is specifically dealt with within the written contract, and the written contract covers or purports to cover the entire agreement of the parties, the law is now clearly and well settled that in the absence of fraud, accident or mistake, the alleged oral representations or agreements are merged in or superseded by the subsequent written contract, and parol evidence to vary, modify or supersede the written contract is inadmissible in evidence.

LeDonne, 256 Pa.Super. at 286-287, 389 A.2d at 1126-1127, quoting Bardwell v. The Willis Co., 375 Pa. 503, 506, 100 A.2d 102, 104 (1953) (footnote omitted); Myers, 398 Pa.Super. at 106, 580 A.2d at 863.

Appellants argue that evidence of the alleged fraudulent misrepresentation is admissible since they were induced to purchase the residence by Starke’s misrepresentation that they were purchasing the home for the lowest price at which that model home had sold. In Myers, supra, we set forth the following test to be employed when deciding whether evidence of misrepresentation is excluded by the parol evidence rule:

Where buyers allege that they were fraudulently induced to purchase a property through fraud or misrepresentation, the applicability to the parol evidence rule is determined by balancing “the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether the party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” LeDonne, supra, 256 Pa.Super. at 294, 389 A.2d at 1130.

Myers, 398 Pa.Super. at 107, 580 A.2d at 864. See also Ward v. Serfas, 387 Pa.Super. 425, 564 A.2d 251 (1989); Mancini v. Marrow, 312 Pa.Super. 192, 458 A.2d 580 (1983); Glanski, supra.

Applying the LeDonne test to the facts before us, we find that the parol evidence rule bars admission of evidence of the alleged misrepresentation to vary, modify or supersede the integration clause of the written sales agreement. Appellants specifically represented in the contract that they did not rely upon any “representation” or “promotional activity” of the seller’s agents. WTiether Starke’s representation concerning the price of the house was true was readily ascertainable before the purchase was completed. All appellants needed to do was check the public record as to the prices for which the same model homes had sold.

This is not a case where the misrepresentation concerned the physical condition of the home and could not have been discovered by an inspection of the premises. See Myers, (purchasers not estopped from demonstrating they were misled as to the meaning of “slow recovery well”); Ward, supra (since septic problems were latent, purchaser was not es-topped from relying upon seller’s misrepresentation of the condition of the septic system); LeDonne, supra (evidence of misrepresentations of condition of septic system was admissible, while evidence of misrepresentations of water damage to sun-deck and basement were not because the truth was readily ascertainable by a cursory inspection). Rather, presently, appellants not only could have easily ascertained the truth but also expressly stated in the contract that they did not rely upon the promotional representations of appellees.

Having determined that the parol evidence rule bars evidence of the alleged misrepresentations, we find that the lower court properly dismissed appellants’ complaint.

Order affirmed.

      . On October 8, 1992, the opinion filed in this matter on August 14, 1992, was withdrawn, and panel reconsideration was granted as to the issue of whether the lower court properly dismissed appellants’ complaint against Meadow Ridge, Inc. and Guidi Homes, Inc. since those defendants did not file preliminary objections. This issue could be considered waived due to appellants’ failure to raise it in their Pa. R.App.P. 1925 statement, Baum v. Baum, 395 Pa.Super. 182, 576 A.2d 1104 (1990), and/or in their Statement of Questions Involved, Pa. R.App.R 2116, West Development Group, Ltd. v. Horizon Financial, F.A., 405 Pa.Super. 190, 592 A.2d 72 (1991), Vaskie v. West American Ins. Co., 383 Pa.Super. 76, 556 A.2d 436 (1989). See also American Tel. & Tel. Co. v. Board of Property Assessment, Appeals & Review, 10 Pa. Cmwlth. 41, 61, 309 A.2d 193, 195 (1973), rev’d on other grounds, 461 Pa. 716, 337 A.2d 844 (1975) (Commonwealth Court will not consider new issue on reargument). However, we will comment simply to clarify the lower court’s order. The order of the court below, which we affirm herein, states:
      AND NOW, this 15th day of August, 1991, upon consideration of Amended Preliminary Objections of Defendants Weichert Realtors and Barry Starke and responses filed thereto, it is hereby ORDERED and DECREED that the said Preliminary Objections are hereby sustained and upheld. Plaintiffs’ Complainty (sic) is dismissed with prejudice. (Emphasis added.)
      We interpret the order as dismissing appellants’ complaint against appellees, Weichert Realtors and Barry Starke, only, since they were the defendants who filed preliminary objections which the lower court sustained.

      . But see, Wittenberg v. Robinov, 9 N.Y.2d 261, 213 N.Y.S.2d 430, 173 N.E.2d 868 (1961) (a contract clause stating that the purchaser had made an independent investigation of the property and was not relying upon the agent's or vendor’s representations, did not release the agent from liability for his misrepresentations, since he was not a party to the contract, although the vendor was allowed to escape liability thereunder).

      . While we recognize that there is no obligation on the part of a purchaser to check the public record prior to the purchase, LaCourse v. Kiesel, 366 Pa. 385, 389, 77 A.2d 877, 880 (1951), we also note that a purchaser is "required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation." Restatement (Second) of Torts, § 541 comment a.

      . Having determined that appellants’ claim is barred by the integration clause of the contract, we need not address the issues of whether fraud was pleaded with sufficient particularity or whether appellants should be permitted to amend their complaint since instantly the integration clause cannot be overcome.


author:
DEL SOLE, Judge.
      JOHNSON, Judge,

text:
    615 A.2d 760
    Jean COLLINS, an Individual; and Terry Collins, Her Husband, Appellants, v. GREENE COUNTY MEMORIAL HOSPITAL, a Corporation; and Arunava Das, M.D.
    Superior Court of Pennsylvania.
    Argued March 4, 1992.
    Filed Nov. 2, 1992.

      Joseph J. Hinchliffe, Pittsburgh, for appellants.
    Thomas J. Madigan, Pittsburgh, for appellee Greene County Memorial.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   DEL SOLE, Judge.

We are asked to consider the right of a litigant, under 42 Pa.C.S. § 5103, to transfer state claims from a federal district court to a court of common pleas following a judgment by the federal court on a federal claim and dismissal of the remaining state claims for lack of jurisdiction. The trial court determined that, because of a seven month delay between the federal court’s dismissal of the state claims and the litigant’s praecipe to transfer the case, the praecipe was untimely filed. The trial court issued an order which struck the praecipe. We affirm.

Jean and Terry Collins, husband and wife, (the Collinses) brought an action against Greene County Memorial Hospital and Dr. Arunava Das (hereinafter collectively referred to as “Hospital”) in the United States District Court for the Western District of Pennsylvania. This suit was comprised of a federal claim based upon the Civil Rights Act of 1964 and several state claims which were before the court on the basis of pendent jurisdiction. On August 17, 1990, following a settlement between the parties on the federal civil rights claim, the district court entered a judgment and final decree on that claim. Six days later, the court dismissed the remaining state claims for lack of jurisdiction.

Nearly seven months later, on March 19, 1991, the Collinses filed a certified copy of the complaint, pleadings, and final judgment from the district court, as well as a Praecipe to Transfer, with the Greene County Court of Common Pleas in order to litigate their state claims.

The Hospital filed preliminary objections to the transfer, contending that the documents were not promptly filed. The trial court agreed, noting that “[t]he effort and time needed to file in state court pursuant to the statute is less than would be expected in filing an amended pleading or filing a responsive pleading after disposition of preliminary objections”, Opinion of June 7, 1991, at 3, and that, in either of those cases, the Pennsylvania Rules of Civil Procedure allot twenty days. The trial court concluded that this case could not be deemed to have been promptly transferred where the Collinses had taken more than two hundred days to act. Said the court, “as a matter of statutory construction, the filing was not ‘prompt,’ as mandated by the transfer statute, the sole vehicle for the plaintiffs to transfer their case from federal court to this court.” Opinion at 44.

In Pennsylvania, 42 Pa.C.S. § 5103 governs the transfer of cases from federal court to state court. That statute states, in pertinent part:

§ 5103. Transfer of erroneously filed matters
(a) General rule. — If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or district justice of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal.
(b) Federal cases.—
(1) Subsection (a) shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth. In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court or before a district justice of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States court, but the transferee court or district justice may require that they be amended to conform to the practice in this Commonwealth. Section 5535(a)(2)(i) (relating to termination of prior matter) shall not be applicable to a matter transferred under this subsection.

42 Pa.C.S. § 5103(a) and (b).

The trial court construed § 5103 to impose a promptness requirement, and determined the seven month delay to have been excessive. Thus, the court issued an order granting Hospital’s preliminary objection and striking the transfer of the case from federal court. The Collinses appealed.

On appeal, the Collinses contend that no timeliness requirement is imposed by the statute, and that, therefore, notwithstanding the seven month delay, the trial court erred by concluding that the filing of the praecipe was not sufficiently prompt. In response, Hospital contends that a promptness requirement is imposed by this court’s decision in Williams v. F.L. Smithe Machine Company, Inc., 395 Pa.Super. 511, 577 A.2d 907 (1990), appeal denied 527 Pa. 650, 593 A.2d 422 (1991).

In Williams, this court held that if a matter is originally filed within the statute of limitations in federal court but is dismissed for lack of jurisdiction, a litigant may effect transfer of the action to a state court by complying with the provisions of 42 Pa.C.S. § 5103(b), and the state court will treat the matter as if it were originally filed in the state court, despite the fact that the federal court took no action to transfer the case or take any other action.

We also held that dismissal of the action by the trial court was not appropriate even though the plaintiffs had failed to file a certified transcript of the final judgment of the United States court and related pleadings until seven months after the federal court granted the motion to dismiss. Given the dearth of case law interpreting this statute and the fact that Appellants partially complied with the statute just 14 days after the case was dismissed by filing a certified copy of the order dismissing the action along with a new complaint, identical to the complaint filed in federal court, we held that dismissal of the complaint for lack of promptness would be unduly harsh. We also stated that to protect the timeliness of an action a litigant must promptly file a certified copy of the transcript of the final judgment of the federal court along with a certified copy of the pleadings in state court.

In the instant case the Appellants gave no indication of their intention to pursue their state claims for nearly seven months after the federal court’s Order of Dismissal. Furthermore, after Williams, the Appellants cannot claim that because of a lack of interpretive case law under § 5103, they did not know what was required of them. Therefore, we hold that Appellant’s actions were not prompt, and the order striking the transfer was proper.

We find Appellees’ analogy with the case law that has developed regarding the writ of summons or complaint and then failing to effect service on the defendant persuasive. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976); Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 496 A.2d 1240 (1985). Beginning with Lamp, our courts have held that if a plaintiff commences an action by writ of summons and then does not attempt service within 30 days by complying with the local rules concerning delivery of the summons to the sheriff within that time, then that failure to make a good faith effort to notify the defendant will serve to nullify both the commencement of the action and the tolling of statute of limitations. This rule of promptness established by the courts was held to be consistent with the policy of avoiding stale claims, making the processes of justice as speedy and efficient as possible, and preventing the possibility of the plaintiff retaining exclusive control over the action for a period in excess of the statute of limitations.

When a litigant transfers an action under § 5103(b), this section, like the filing of a writ of summons, provides protection from the bar of the statute of limitations. This protection comes into play in the situation where the litigant has timely filed an action, such that notice to the defendant is sufficient for statute of limitations purposes, but as the federal court subsequently determines, has filed in the wrong court. If, however, a litigant fails to promptly transfer the action to the appropriate court, then the litigant abuses that protection, (as was done prior to Lamp by parties commencing actions by writ of summons,) subverts the policies underlying the statute of limitations, and undermines the speedy and efficient processes of justice.

Therefore, we hold that litigants must act promptly in transferring their actions which have been dismissed for lack of jurisdiction by the Federal courts. We again ask, as we did in Williams, supra, 395 Pa.Super. at 511, n. 1, 577 A.2d 907, that our Legislature will see fit in the future to include a specific time requirement of 30 days in the provisions of 42 Pa.C.S.A. § 5103.

Order is affirmed and jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I am unable to conclude that the statute dealing with the transfer of erroneously filed matters has any applicability to the facts presented in the within appeal. Nor do I find any support for my esteemed colleagues’ conclusion that the purpose of the transfer statute is to eliminate duplication of effort. By its express terms, the statute under review requires that the transferring court be without jurisdiction over the matter before the authorization to transfer is triggéred. There is absolutely nothing in the certified record of this case to even suggest that the federal district court was without jurisdiction over the matters involved. Since I find the construction placed upon the statute by my colleagues to be both strained and fraught with the potential for future mischief, I must dissent.

I begin by stating that the most distinguished trial judge arrived at the right conclusion by striking the praecipe which sought to transfer this action from the federal district court. However, I believe that the focus on the timeliness of the attempted transfer — by the trial court, by the litigants, and by my colleagues in the majority — is misplaced.

We have been asked to determine whether, under Williams v. F.L. Smithe Machine Company, Inc., 395 Pa.Super. 511, 577 A.2d 907 (1990), appeal denied 527 Pa. 650, 593 A.2d 422 (1991), the plaintiffs’ seven month delay precludes a transfer of their state law claims pursuant to Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103. I conclude that Williams is inapplicable to the present case and that the claims presented here were not transferable under § 5103 regardless of the plaintiffs’ delay. The decision of the trial court was correct, albeit for what I believe to have been the wrong reasons.

Where a court makes a correct ruling, order, decision, judgment or decree, but assigns an erroneous reason for its action, an appellate court will affirm the action of the trial court and assign the proper reason therefor. Taylor v. Churchill Valley Country Club, 425 Pa. 266, 268, 228 A.2d 768, 769 (1967); Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955); Coatesville Development Company v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 338, 542 A.2d 1380, 1384 (1988). This approach however is only appropriate where the correct basis for the ruling, order, decision, judgment or decree is clear upon the record. Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 501, 327 A.2d 72, 76 (1974). I would submit that the correct basis for the striking of the transfer praecipe is, indeed, clear upon this record.

The docket entries, along with certified copies of the pleadings and other documents filed in the case of Collins v. Greene County Memorial Hospital, at Civil Action No. 88-967, in the United States District Court for the Western District of Pennsylvania, have been certified from the record by Catherine D. Martrano, Clerk. They were filed of record, on March 19, 1991, at A.D. No. 186 of 1991 in the Court of Common Pleas of Greene County. All of these pleadings were before the trial court when it entertained the hospital’s preliminary objections and motion for summary judgment.

Those certified documents reveal that the case originated in federal district court on April 29, 1988 upon the filing of a complaint. Jurisdiction in the court was alleged to be found by virtue of Title VII of the Civil Rights Act of 1964, as amended at 42 U.S.C. § 2000e et seq. That jurisdictional claim was formally contested in boilerplate defenses by the defendant hospital (Answer to Complaint filed July 1, 1988, Eighth, Twelfth and Fourteenth Defense(s)) and by the defendant doctor (Motion to Dismiss filed July 18, 1988, Sections I and II). In any event, the jurisdictional issue was settled no later than May 22, 1990 when District Judge Gustave Diamond (1) held a hearing on all outstanding motions, (2) denied all outstanding motions to dismiss, and (3) decreed that discovery would be completed within 120 days after the plaintiffs deposition.

The Title VII portion of the action was concluded favorably to the plaintiffs. The amount of the settlement in favor of the plaintiffs is not spread upon the certified record. Nevertheless, that record establishes that, on October 29, 1990, after the case had been in litigation for exactly two and one-half years, the federal district judge awarded attorneys’ fees to the plaintiffs totalling $22,600, along with costs in the amount of $1,082.38. The plaintiffs were the prevailing parties. 42 U.S.C. § 1988. Undated Stipulation of the parties, filed October 29, 1990 at No. 88-967.

On this appeal, my colleagues assume and assert that the action pursued at No. 88-967 was dismissed for lack of jurisdiction. The certified record belies that assertion. In dismissing the plaintiffs’ claims which were remaining following the settlement of the Title VII claim, United States District Judge Diamond stated, in pertinent part:

On August 17, 1990, we entered judgement on plaintiff Jean Collins’ Title VII claims against defendant ... “Hospital” upon the consent of the parties. Thus, the only claims which remain before us are the plaintiffs’ pendant [sic] state claims against the Hospital and against the pendant party ... “Das”.
Having given the matter due consideration, the court will exercise its discretion in favor of dismissing the pendant claims given that judgment has been entered on the sole claim over which we have independent jurisdiction. First,....., we conclude that it is inappropriate for us to retain jurisdiction over claims asserted against defendant Das after judgment has been entered on the claims over which we had independent jurisdiction____ We note also that some of the claims remaining are those asserted by plaintiff Terry Collins, a non-diverse party who has not asserted any federal claims against the defendants. These circumstances, coupled with the entry of judgement on the only federal claims in this suit, convince us that a decision to not exercise “pendant party jurisdiction” [sic] over defendant Das is appropriate.
Second, we note that the decision on whether to exercise jurisdiction over pendant claims lies in the sound discretion of the district court....
Accordingly, for the reasons set forth above, IT IS ORDERED that the plaintiffs’ remaining claims against defendant Greene County Memorial Hospital and their claims against defendant Arunava Das be, and hereby are, dismissed.
s/Gustave Diamond
United States District Judge

Memorandum Order, Diamond, D.J., August 23, 1990, pages 1-3, filed August 24, 1990 at No. 88-967, certified copy filed March 19, 1991 at Civil Division A.D. No. 186, 1991 (emphasis added).

There is absolutely nothing in the Memorandum Order itself or in the federal district court docket entries to support an assertion that the case filed at No. 88-967 was dismissed for lack of jurisdiction. To the contrary, Judge Diamond correctly observed that pendent jurisdiction is a doctrine of discretion, and the power in federal courts to hear both state and federal claims, assuming substantiality of the federal issues, need not be exercised in every case in which it is found to exist. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218, 227-28 (1966).

Although Judge Diamond stated, by way of dictum in his Memorandum Order quoted above, that the plaintiffs would not suffer the prejudice of having a statute of limitations problem, following dismissal, in light of 42 Pa.C.S. § 5103(b), there is nothing included in the record to either explain or support that assertion. Moreover, Judge Diamond would have been aware that no one may properly rely upon what the federal district court might say as persuasive on any question of Pennsylvania law so long as our Pennsylvania Supreme Court has not ruled upon the legal question. Aceto v. Zurich Insurance Company, 440 F.2d 1320 (3rd Cir.1971).

I conclude, after a careful review of the entire record, that the plaintiffs brought their action in the federal district court, by choice, on April 29, 1988. After two and one-half years of litigation as evidenced by the certified record, the plaintiffs secured a favorable settlement of their Title VII claim. After that claim was settled, Judge Diamond dismissed the remaining claims on August 23, 1990, finding that the further exercise of pendent jurisdiction was not appropriate. The Memorandum Order by which Judge Diamond dismissed the pending state claims does not permit an inference that the federal district court found itself to be without jurisdiction. To the contrary, its earlier order of May 22, 1990 dismissing all pending pretrial motions established that the district court deemed itself to have jurisdiction over all the claims then pending.

With these facts as background, this court must then consider the proper application of Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103, to the attempted transfer now under review.

The majority would argue that the purpose of the act which they term the Federal-State transfer statute is to obviate the transfer of actions from federal courts where pendent state claims are involved. I have found nothing in the history of this statute to support that claim. To the contrary, the enactment of Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103, and its various parts can lead but to one conclusion: From its inception, the statute has been intended to apply only where a case has been erroneously filed in the wrong court.

The present Section 5103(a) first appeared as Section 503(b) of the Appellate Court Jurisdiction Act of 1970. In its original form, the subsection was enacted as follows:

Section 503. Waiver of Objections to Jurisdiction; Transfer of Cases.
(a) .....
(b) If an appeal or other matter is erroneously taken to or brought in a court which does not have jurisdiction of the appeal or other matter, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof, at the cost of the appellant, petitioner or plaintiff, to the proper court of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in that court on the date erroneously filed in the other court.

Act No. 223 of 1970, P.L. 673, art. V, § 503 at P.L. 679 (formerly 17 P.S. § 211.503) (emphasis added). The language of the subsection makes it clear that Section 503(b), at its inception, was intended to cover only those cases where a matter had been erroneously lodged in the wrong court.

Prior to the enactment of the Appellate Court Jurisdiction Act, the Second Class Township Law of 1933 contained a similar section that was re-enacted without change in 1947, and has since been incorporated into Section 5103(a). As originally enacted, the 1933 Law contained this section, in its entirety:

Section 1049. Appeals to the wrong Court.—
Should any appeal under this article be made to the wrong court, such court shall certify the appeal to the court to which it should have been taken.

Act No. 69 of 1933, P.L. 103, art. X, § 1049 at P.L. 156, (formerly 53 P.S. § 66049), re-enacted without change, Act No. 567 of 1947, P.L. 1481, Section 15, re-enacting, revising and amending Second Class Township Law Sections 1020 to 1101 inclusive, at P.L. 1558.

Moreover, the 1965 act providing for the transfer of any cause mistakenly appealed to any court from a judgment of a magistrate or justice of the peace compels the same conclusion. The 1965 act, in its entirety, provided:

Section 1. Whenever an appeal from a judgment of a magistrate or justice of the peace is taken to any court instead of the court to which it should have been taken, the appeal shall not thereby be lost, but the court to which the appeal was taken shall transfer the cause to the court to which the appeal should properly have been taken.

Act No. 156 of 1965, P.L. 298, § 1, (formerly 42 P.S. § 929) (emphasis added).

The 1933/1947 act and the 1965 act set forth above, as well as Section 503 of the Appellate Court Jurisdiction Act of 1970, are all now lodged in Section 5103 of the Judicial Code of 1976, as amended.

Whether we look to the catchlines of the Pamphlet Laws or review the content of each act, only one conclusion seems possible. All of the acts dealing with transfer of matters from one court to another, including the 1933, 1947, 1965, 1970 and 1976 acts, require that a matter be erroneously filed in the wrong court before a transfer is authorized under the act.

The headings prefixed to sections of a statute shall not be considered to control but may be used to aid in the construction thereof. 1 Pa.C.S. § 1924; Fedor v. Borough of Dormant, 487 Pa. 249, 254 n. 3, 409 A.2d 334, 337 n. 3 (1979). Each time the legislature has passed legislation affecting Section 5103, it has used the identical catchline: Transfer of erroneously filed matters. See Act 1976-142, P.L. 586 at P.L. 695; Act 1978-53 (Judiciary Act Repealer Act), P.L. 202 at P.L. 397; Act 1982-326 (JARA Continuation Act of 1982), P.L. 1409 at P.L. 1422. Even before that more recent history, the legislature spoke only in terms of “Appeals to the Wrong Court”, see Act 1933-69, P.L. 103 at P.L. 156; Act 1947-567, P.L. 1481 at P.L. 1558; or “Whenever an appeal ... is taken to any court instead of the court to which it should have been taken ...” Act 1965-156, P.L. 298.

In construing Section 5103 of the Judiciary Code, the legislative intent controls. The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of our General Assembly. 1 Pa.C.S. § 1921(a). However, when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).

When I turn to the statute in its present form, which has not undergone any change since passage of the JARA Continuation Act of 1982, I find it to be crystal clear and free from any ambiguity.

In the JARA Continuation Act of 1982, Act 1982-326, P.L. 1409, the legislature continued to use the catchline, “Transfer of erroneously filed matters.” See P.L. 1409 at P.L. 1422. Under both subsection (a) and subsection (b) of Section 5103, the plaintiffs are barred from effecting transfer.

Subsection, (a) of Section 5103 provides, in pertinent part:

§ 5103. Transfer of erroneously filed matters.
(a) General rule. — If an appeal or other matter is taken to or brought in a court ... of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court ... shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth.....

42 Pa.C.S. § 5103(a) (emphasis added). I can only read the emphasized clause — “if a matter is brought in a court which does not have jurisdiction” — as a proviso. Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer. 1 Pa.C.S. § 1924. The right to transfer the record therefor must depend upon the matter having been erroneously filed. Under subsection (a), the plaintiffs on this appeal could not prevail.

When we proceed to examine subsection (b), the same result is dictated. That subsection provides, in pertinent part:

(b) Federal cases.—
(1) Subsection (a) shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth.... Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court ... of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).

42 Pa.C.S. § 5103(b) (emphasis added). There are two independent reasons contained in subsection (b) militating against a transfer by the plaintiffs in this case. If the matter is transferred by the United States court, itself, subsection (a) is mandatory in its application, thereby bringing into play the proviso discussed above. On the other hand, in order for a litigant to transfer the matter, as may have been attempted in this case, the statute is equally clear that it requires that the matter must have been dismissed for lack of jurisdiction. Again, the proviso in subsection (b) can only be understood to limit rather than to extend the operation of the transferring clause to which it refers. 1 Pa.C.S. § 1924.

I conclude that Section 5103 is only applicable in those situations where it can be established that the action was originally filed in the wrong court. In this case, extremely competent plaintiffs’ counsel elected to file the sexual harassment suit in a federal district court and pursue that venue for two and one half years. Counsel secured a favorable result for their clients. Plaintiffs, in their Appellants’ Brief, assert that Judge Diamond entered “a Memorandum Order dismissing Plaintiffs’ remaining state claims for lack of subject matter jurisdiction.” That assertion simply is not borne out by the plain language of the Order quoted above.

The action was dismissed not for lack of jurisdiction but because the federal district court, in proper exercise of its discretion, determined that it would decline to continue the exercise of jurisdiction which it had previously found no later than May 22, 1990. The state and federal claims did derive from a common nucleus of operative fact. A review of the complaint filed originally in the federal district court establishes that the claims raised by this suit would ordinarily be expected to be tried in one judicial proceeding. The plaintiffs pled that the physician-defendant had forced the wife-plaintiff to perform an involuntary deviate sexual act, that the hospital-defendant had violated its obligations under the 1964 Civil Rights Act, that the hospital had been negligent in its hiring, placement and supervision of the doctor-defendant, and that the wife-plaintiff had undergone an assault, a battery and intentional infliction of emotional distress, all arising from her attempts to thwart or terminate the sexual harassment. All of the acts complained of involve the relationship between the plaintiffs, the doctor-defendant and the hospital-defendant. Given the substantiality of the federal, civil rights claim set forth in Count I of the complaint filed in the federal district court, there can be no question but that the district court had the power, that is to say, the jurisdiction, to hear the entire case. United Mine Workers of America v. Gibbs, supra.

Section 5103, by its terms, permits a transfer where a “matter is taken to or brought in a court ... which does not have jurisdiction of the ... matter”. Here, the action was first brought in the federal district court. Under the law set forth in Gibbs, that court had jurisdiction over the matter. Therefore, this case is not included within the scope of § 5103.

This result is further supported by our legislature’s use of the term “matter” to describe what may be transferred under this statute. A “matter” is defined to be “an action, proceeding or appeal.” 42 Pa.C.S. § 102. An “action” is “[a]ny action at law or in equity.” Id. A “proceeding” is defined to include “every declaration, petition or other application which may be made to a court under law or usage or under special statutory authority, but the term does not include an action or appeal.” Id. This legislative language forces the conclusion that § 5103 only provides authority to transfer the entire action as a result of the transferring court’s lack of jurisdiction over the entire case. That section does not permit nor does it anticipate the transfer of individual claims. Therefore, even if the Collinses’ attempt to transfer via the statute would be considered as having been timely filed, one must conclude on this independent ground, alone, that the transfer was not permitted by the statute.

The parties rely extensively on Williams v. F.L. Smithe Machine Company, Inc., supra, for their arguments regarding the existence of a “promptness” requirement. However, Williams is inapplicable to this case. There, a transfer from the federal district court to the state court was attempted following the federal court’s dismissal for lack of jurisdiction over the case. That dismissal was based upon a lack of diversity between the parties. There was never any question in Williams about the lack of jurisdiction. Because the federal court in Williams never had jurisdiction over the “matter,” that transfer was properly within the terms of Section 5103. Here, the federal court had jurisdiction to enter an order as to all of the claims originally presented to it. Therefore, it cannot be said that the matter was filed with a court that did not have jurisdiction. Accordingly, Williams is inapplicable to the instant case.

I began by suggesting that the reasoning set forth by my colleagues presented the potential for future mischief. It must be borne in mind that the only concern of the legislature in each and all of the separate acts now incorporated into Section 5103 was to provide a vehicle by which cases mistakenly filed in the wrong court could be transferred to the court in which they should have initially been brought. Common experience should instruct us that the time involved in determining that a court is completely without jurisdiction in a matter is normally relatively short.

The majority would raise the specter of the “need” to file state protective actions. An examination of the statute demonstrates that the legislature has already considered that contingency in the only factual situations intended to be covered by the act. Section 5103(b)(1) already provides that, where a matter has been erroneously filed:

In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court ... is not required to commence a protective action in a court ... of this Commonwealth. Where a matter is filed in any United States court ... and the matter is dismissed ... for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court ... of this Commonwealth ...

42 Pa.C.S. § 5103(b)(1) (emphasis added). The majority would ignore the clear, oft-repeated proviso that proclaims lack of jurisdiction as the prerequisite for transfer eligibility. I submit that the rules of statutory construction set forth in the Pennsylvania Consolidated Statutes prohibit the result sought by my colleagues.

I earnestly believe that the words of this statute are clear and free from all ambiguity. 1 Pa.C.S. § 1921(b). Even if it could be argued that the words lack clarity — an assertion which I believe is unsupportable — the legislature has declared through the statute’s catchline that the object to be obtained is the transfer of erroneously filed matters. The mischief to be remedied, originally, was the loss of the right to pursue an appeal because the appeal would have been filed in the wrong tribunal. The former laws on this subject are uniform in declaring that. Consideration of these matters leads to the same conclusion: Section 5103 was never intended to deal with matters properly filed in a federal district court where the plaintiffs receive a settlement on the federal claim in the district court and then attempt to transfer the balance to the state courts. 1 Pa.C.S. § 1921(c).

No reason is advanced by appellants as to why they elected to attempt a transfer of some of their claims two and one-half years after the suit was originally brought. There has been no suggestion that the plaintiffs were in any way prevented from pursuing all of their claims in the district court. I agree with the appellants that the language of Section 5103 is both clear and unambiguous. In the face of the clear language requiring an erroneous filing, I am at a loss in locating the statutory language undergirding my colleagues’ decision.

Because I would determine that the requirement for an erroneous filing has not been met, I do not reach the question of whether the Memorandum Order of Judge Diamond entered August 23, 1990 meets the requirement for a “final judgment of the United States court” as required under subsection (b)(2) of Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103(b)(2).

I would leave to the wisdom and experience of the legislature whether special provisions should be enacted for those plaintiffs who would like to have it both ways. I find the present provisions adequate to protect parties who have mistakenly filed a matter in the wrong tribunal. The order dismissing the praecipe for transfer should indeed be affirmed, not as a result of any promptness analysis but because Section 5103 is inapplicable. The history of the statutory section and its wording demonstrate that it was not intended to be used as the appellants would have this court interpret it. I therefore register my dissent.

      . The dissent claims that this case is not included within the scope of § 5103 because we must read this section to allow transfer only when the transferring court lacks jurisdiction over the entire matter, which is defined in 42 Pa.C.S. § 102 as an action, proceeding, or appeal. Because the transferring court had jurisdiction over the matter, at least until the Federal claim was resolved, the dissent argues that § 5103 cannot be used to toll the statute and effect transfer to the state court.
      However, the purpose of the Federal-State transfer statute would be frustrated by such a construction. To hold otherwise would require the filing of State protective actions every time a federal claim with pendant state claims is filed in Federal court on the off chance that if the federal claim is resolved, the litigant will be barred from pursuing the state claim. This is the very problem, the elimination of duplication of effort, which this statute was designed to prevent.
      Furthermore, it seems equally logical to construe the language of this statute to include cases with facts similar to those present here. After all, once a federal claim is resolved, the entire "matter” or "action” before the federal court is a state action made up of state claims, and therefore when the federal court dismisses the "matter” for lack of jurisdiction, the provisions of § 5103(b) may be used to effect transfer of the action.