author: WIEAND, Judge:

text:
    572 A.2d 746
    COMMONWEALTH of Pennsylvania v. Anna AKERS a/k/a Anna Wolfe, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed March 30, 1990.

      H. David Rothman, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Anna Akers a/k/a Anna Wolfe was charged with the shooting death of her husband, James Akers, in Hampton Township, Allegheny County, on June 29, 1972, by criminal complaint filed September 9, 1985. On May 19, 1986, a jury found her guilty of first degree murder. After filing post-trial motions on Mrs. Akers’ behalf, trial counsel was permitted to withdraw from the case, and present counsel was retained. He filed several supplemental post-trial motions. These were the subject of subsequent evidentiary hearings. Thereafter, the trial court denied all post-trial relief and sentenced Mrs. Akers to prison for the term of her life. On direct appeal from the judgment of sentence, Mrs. Akers has submitted a brief which asserts numerous trial errors and more than thirty instances of alleged ineffective assistance by trial counsel. Finding no merit in any of appellant’s contentions, we affirm the judgment of sentence.

The great number of issues raised by appellant causes us to be reminded of comments made by the Honorable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit, who reflected:

‘With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.’

United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982), quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982). See also: Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 160-161, 500 A.2d 453, 456 (1985); Commonwealth v. Klinger, 323 Pa.Super. 181, 191, 470 A.2d 540, 545-546 (1983). Nevertheless, we have carefully examined the many arguments advanced by appellant which are assigned as a basis for granting appellate relief in this case.

At the time of the killing, appellant was accompanying her husband, a truck driver, who had travelled from Burlington, Iowa, to Pittsburgh in order to make a delivery. After the delivery had been made, appellant and her husband spent the night in Room #4, at Buskey’s Motel on Route 8 in Hampton Township, Allegheny County. There it was that James Akers was fatally shot in the head at or about 3:00 a.m. on June 29, 1972. The specific facts adduced at trial which led to appellant’s conviction were summarized in the trial court’s opinion as follows:

Sometime following the shooting, the defendant sought help from the person staying in the next room (Room # 5), Ralph Sweet. She told Mr. Sweet that her husband had been shot by a masked intruder during a robbery— which account she repeated to various law enforcement authorities who questioned her; and which she also told to the jury at trial. Mr. Sweet, who had gone to bed at 1:00 a.m., had not heard any unusual noises (particularly, the gunshot from Room #4), until the defendant had awakened him by pounding on his door.
When Hampton Township Police Officer Richard Montgomery arrived at the motel, Mr. Akers was lying on the bed. He had a bullet wound to his head but he was still alive. The Officer and the defendant assisted Mr. Akers to the bathroom where he wiped-off blood; and although he was unable to talk, he made no effort to indicate that his wife was responsible for this shooting, a fact which defense counsel emphasized on cross-examination.
Mr. Akers was taken to North Hills Passavant Hospital where he died as a result of this wound. According to Dr. Earl Davis, a forensic pathologist with the Allegheny County Coroner’s Office, death was caused by a cerebral hemorrhage, due to the gunshot wound to his head. The bullet — which had been fired at close range — had entered Mr. Akers head by his left ear and it was recovered in the lower front lobe of the brain. Dr. Davis thought it highly unlikely that Mr. Akers would have been capable of walking to the bathroom or any other voluntary movement as a result of his injury.

While still at the motel, the defendant discussed this shooting with Officer Montgomery in greater detail than she had with Mr. Sweet. According to her account, she had gone into the bathroom and left her husband lying in bed. When she returned, she said that a masked intruder with a gun was standing beside her husband, demanding money. (She said that she or her husband had apparently left the door to the room unlocked.) When she turned her back to reach for her husband’s wallet, she heard him call the intruder a “filthy hippie” and then she heard a shot. She begged the intruder not to shoot him again. The intruder went into the bathroom “for several minutes”, came back out and told her to stay in the room for 15 minutes. She gave Officer Montgomery a general description of this man. A .22 caliber pistol was found inside the Akers’ luggage but it was determined not to be the gun used in the shooting.

Between 7:00 and 9:00 a.m. that morning (6/29/72), the defendant was taken downtown and questioned by Detective Richard Byers, a homicide investigator for the Allegheny County Police. His typed notes — containing the same information that she had told Officer Montgomery — were read to the jury. Mrs. Akers was given a neutron activation test (to check for gun powder residue on her hands) but the results were negative.

In August, 1972, the police had a suspect in custody and Detective Byers called the defendant in Iowa to ask some additional questions (particularly, regarding her description) and to make arrangements for her to come to Pittsburgh to view a line-up. The Detective read his notes of this phone interview to the jury. Because the defendant was unable to make an identification, the suspect was released and the case remained unsolved.

In the summer of 1976, about 4 years after the homicide, during some renovation work in the bathroom of Room #4, a pistol wrapped in what appeared to be blood-stained toilet tissue and containing 5 live rounds and 1 spent round was found hidden underneath the bottom drawer of the bathroom vanity. It was turned over to Lt. Itri of the Hampton Township Police Department who took it to the Allegheny County Crime Lab for testing. Dr. Robert Levine, a Criminalist with the Crime Lab, made a comparison between the bullet slug recovered from Mr. Akers skull and one he test fired from this pistol and he concluded that this was the gun used to kill Mr. Akers.

Dr. Levine further testified that it was not unusual for the-results of a neutron activation test to be negative, since gun powder residue easily brushes off (for example, by washing hands or putting them in pockets); and that it is difficult to find fingerprints on a pistol, this being the exception rather tha[n] the rule. The gun was examined for fingerprints but none were found. The test results, if any, [from the] blood-stained toilet paper which had been signed out to another section of the Crime Lab were not presented to the jury.

The discovery of this gun did not come to Detective Byers’ attention until August, 1984 at which time the case was reopened for additional investigation. One year later, the defendant was arrested and charged with this crime. This additional investigation resulted in the following evidence.

Carrie Giza (th[e]n 19 years old) and her future husband, Robert, had stayed in a room on the front right side of Buskey’s Motel “sometime during the summer of 1972”. According to Ms. Giza, they arrived when it was dark and stayed until the early morning hours. They had heard an argument between a man and a woman in the next room, the man saying “whore and bitch” and the woman saying “mother fucker” which argument had lasted on and off for a couple of minutes. Ms. Giza and Robert had laughed about this argument and it did not alarm them. Following the argument, they heard a bang which Ms. Giza said sounded like a truck backfiring.

The next day, Ms. Giza heard about a shooting at Buskey’s Motel but she did not call the police. She did not want to become involved since she was embarrassed about staying at the motel with Robert. Lt. Itri of the Hampton Township Police Department testified that from 1972 until the time of trial, this was the only shooting which had been reported at Buskey’s Motel. From this circumstan[t]ial evidence, the jury was entitled to conclude that in fact Carrie Giza had been at Buskey’s Motel the night of this shooting.

Mrs. Giza’s estranged husband, Robert Giza, testified as a defense witness that although he had stayed at Busk[e]y’s Motel with Carrie, he did not recall hearing an argument and a bang.

In addition, Detectives questioned two people who knew the defendant in 19[7]2, both of whom testified at trial. For several months prior to the shooting, Vester Shaw had “dated” the defendant roughly once a week. According to his testimony, she had complained to him that her husband had a bad temper and that he had once threatened her with a gun. One month before her husband’s death, the defendant had considered the possibility of a plan to eliminate her husband. When she returned to Iowa after the shooting, she denied having anything to do with her husband’s death but told Mr. Shaw he had been shot by a masked intruder. Soon thereafter, the defendant broke off her relationship with Shaw despite his various efforts to reconcile.

Maxine Cornick and her husband had been friends with Mr. and Mrs. Akers for several years before the shooting. Five months before Mr. Akers death, the defendant had shown Mrs. Cornick a dark blue handgun and said that her husband had given it to her for protection. Mrs. Cornick was unable to identify Commonwealth’s Exhibit # 4 (the gun) as the same gun although she testified that it looked the same. The defendant had also taken Mrs. Cornick to her basement where she had shown the witness a heavy sleeping bag which she said she used for target practice. In addition, the defendant once took Mrs. Cornick to Vester Shaw’s apartment — using her own key to get inside — and showed her the bedroom where she said they had “spent time together”. Mrs. Cornick said that she knew , Mr. Akers had been jealous; and the defendant told her that he had once threatened her and the next day sent roses and apologized.

The defendant testified on her own behalf. She told the jury that a masked intruder had shot her husband as she had stated to the police. In addition, she denied having any relationship with Vester Shaw — that she never dated him or slept with him; and she denied telling Mrs. Cornick that she had done so. She also denied taking Mrs. Cornick to Mr. Shaw’s apartment contending that she had only been there once before for the purpose of dropping-off Mr. Shaw’s girlfriend at a party. Both sides presented rebuttal and surrebuttal evidence dealing with the existence or non-existence of a relationship between Shaw and the defendant.

Appellant advances a multi-faceted argument which is difficult to follow but which, in essence, challenges the sufficiency and weight of the evidence. She argues that because Carrie Giza, Vester Shaw and Maxine Cornick, witnesses appearing on behalf of the Commonwealth, had not come forward at the time of the shooting in 1972, but had waited more than twelve years to disclose relevant information to the police, their testimony was rendered inherently improbable, incredible and unreliable, and, as such, was inadmissible. Because of the incredible nature of the Commonwealth’s evidence when contrasted with appellant’s own spontaneously rendered and credible version, it is asserted that “the evidence was insufficient to establish that the offense did not occur in the manner described by appellant.” Similarly, appellant argues that because the Commonwealth’s evidence was incredible, it resulted in a verdict which was contrary to the weight of the evidence. Finally, appellant contends that a conviction based on such unreliable evidence deprived her of a fair trial and violated her rights to due process and equal protection of the law.

“In reviewing appellant’s challenge to the sufficiency of the evidence we must determine ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ” Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “When conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given to each [witness’s] testimony and to believe all, part, or none of the evidence as they deem appropriate.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). See also: Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The same standard is applicable in cases, such as the instant case, where the evidence supporting a conviction “is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). See also: Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Petrisko, 442 Pa. 575, 579-580, 275 A.2d 46, 49 (1971). There is no requirement that the Commonwealth exclude all possibility that a third party may have committed the crime. See: Commonwealth v. Sullivan, supra at 152-153, 371 A.2d at 479; Commonwealth v. Kravitz, 400 Pa. 198, 212-213, 161 A.2d 861, 868 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

When viewed in this light, it is evident that the Commonwealth’s evidence was legally sufficient to support appellant’s conviction for first degree murder. The evidence at trial established that a month prior to the shooting appellant had expressed a desire to have her husband killed. The evidence also established a motive for the killing. There was also testimony that appellant possessed a gun similar to the murder weapon, so that a jury could find that she had the means with which to commit the crime. Finally, appellant was present in the motel room when her husband was shot, thus giving her an opportunity to commit the crime which she said she had wanted to commit. From the testimony of Carrie Giza, the jury also could have found that the fatal shot was fired following a heated argument between appellant and her husband. Although appellant claimed that an unknown robber had entered the room and killed her husband, the credibility of such testimony was for the jury to determine. The jury could, as it did, reject appellant’s version of events and accept as true the evidence presented by the Commonwealth. Appellant’s suggestion on appeal that her testimony was credible, while that of the Commonwealth’s witnesses was incredible, provides no basis for relief. Credibility issues were for the jury.

Appellant’s challenge to the weight of the evidence must also fail. “The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion.” Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). “Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court's denial of a motion for a new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). Instantly, appellant’s assault on the jury’s credibility determinations is not persuasive that there was an abuse of discretion by the trial court when it refused to award a new trial on the ground that the verdict was contrary to the weight of the evidence.

Appellant has cited no authority and our research has disclosed none which supports her contention that the passage of time renders a witness’s testimony inadmissible as a matter of law. In Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989), the Supreme Court reiterated that, in cases involving sexual offenses, the failure of a victim to make a prompt complaint is a matter bearing upon the credibility of the witness and is for the jury to consider, but it does not render the victim’s testimony inadmissible.

It is hornbook evidentiary law that a witness may be impeached by showing that, on a prior occasion, he or she engaged in conduct inconsistent with testimony given at trial. See 3A Wigmore, Evidence § 1042 (Chadbourne rev. 1970).
See also Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537 (1982). A corollary to this rule is that
[i]f a witness had been under a duty to speak on a prior occasion, or if it would have been natural for the witness to have spoken on such an occasion, but the witness remained silent, the witness may be impeached by showing that the present testimony included a fact as to which he had been silent on a prior occasion. Torcía, Wharton’s Criminal Evidence § 436 (14th ed. 1986) (emphasis added).

Commonwealth v. Lane, supra, 521 Pa. at 397, 555 A.2d at 1250. This we deem a correct statement of the law. The failure of Commonwealth witnesses to come forward in 1972 was a matter affecting the weight and credibility of their testimony, but it did not render their testimony incompetent and inadmissible. Cf. Commonwealth v. Rodgers, 472 Pa. 435, 458-459, 372 A.2d 771, 782 (1977) (plurality opinion) (although defendant’s alibi witnesses had no legal duty to inform police immediately of defendant’s whereabouts at time crime was committed, Commonwealth could properly cross-examine witnesses as to failure to come forward, for this went to the witnesses’ credibility and was, therefore, a proper area of cross-examination).

While there is no statute of limitations in homicide cases, the due process clause of the Fourteenth Amendment of the United States Constitution requires dismissal of criminal charges if pre-indictment delay causes substantial prejudice to the defendant’s right to a fair trial and such delay has been employed by police as an intentional device to gain a tactical advantage over an accused. Commonwealth v. Arnold, 331 Pa.Super. 345, 360, 480 A.2d 1066, 1074 (1984), quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-481 (1971). See also: Commonwealth v. Berry, 355 Pa.Super. 243, 251, 513 A.2d 410, 414 (1986); Commonwealth v. Murphy, 305 Pa. Super. 246, 252, 451 A.2d 514, 517 (1982). The Commonwealth is not required by the Constitution to file charges as soon as it obtains evidence of a defendant’s guilt. Rather, it may delay the filing of charges in order to conduct further investigation. “A delay for a reasonable investigation does not violate due process even if it adversely affects the defendant’s case.” Commonwealth v. Colson, 507 Pa. 440, 452, 490 A.2d 811, 817 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also: United States v. Lovasco, 431 U.S. 783, 795-796, 97 S.Ct. 2044, 2051-2052, 52 L.Ed.2d 752, 762-763 (1977); Commonwealth v. Sneed, 514 Pa. 597, 604, 526 A.2d 749, 752-753 (1987).

Instantly, appellant does not argue that the Commonwealth intentionally delayed the filing of charges against her. Rather, she contends that due process and equal protection of the law required the witnesses against her to come forward in 1972 or shortly thereafter to provide the evidence which was subsequently relied upon by the Commonwealth. In so doing, she concedes that “there is no evidence that the Commonwealth prevented or discouraged the witnesses from coming forward.” Our review of the evidence confirms that the Commonwealth took no intentional action to delay the filing of charges in the instant case. Until the Commonwealth uncovered information possessed by Giza, Shaw and Cornick, it lacked adequate cause for bringing a criminal charge against appellant. Under these circumstances there was not a showing that the Commonwealth’s action in causing or allowing the delay was “fundamentally unfair.” Therefore, there was not a due process violation. United States v. Lovasco, supra. Cf. Commonwealth v. Berry, supra (no due process violation where pre-indictment delay was solely attributable to victim’s reluctance to report the crimes). Moreover, appellant has failed to allege specifically in what manner the delay prevented her from receiving a fair trial. Instead, she relies solely upon the erroneous belief that the Commonwealth witnesses were under a legal duty to come forward. As we have already observed, no such duty existed.

Appellant next argues that the trial court should have stricken the testimony of Carrie Giza because it lacked specificity. Appellant argues that because Giza did not know the exact date on which she had stayed at Buskey’s Motel and was unable to state positively that the bang which she had heard was a gunshot, the witness should not have been allowed to testify. A similar argument was rejected by the Superior Court in Commonwealth v. Palmer, 273 Pa.Super. 184, 417 A.2d 229 (1979). There, a witness testified that she had heard sobbing, then a cry and a bang. The witness described the sobbing and cry as sounding like a female voice and the bang as sounding like a firecracker. On cross-examination, however, the witness admitted that she was not certain what the sounds were. The defendant argued that the witness’s testimony was too uncertain to be admitted at trial, but the Superior Court held that the uncertainties of the witness had been subjected to cross-examination and “bore on the weight to be accorded [the witness’s] testimony, not its admissibility.” Commonwealth v. Palmer, supra, 273 Pa.Superior Ct. at 191, 417 A.2d at 232. Similarly in the instant case, although Giza was not certain of the date on which she had stayed at the motel, she said she had learned the next morning that a shooting had occurred. The Commonwealth produced evidence that no other shootings had occurred at the motel. Thus, it was possible for the jury to find that Giza had been at the motel on the night on which Akers had been shot. Whether the bang which Giza had heard was, in fact, a gunshot was for the jury to determine. The uncertainties in Giza’s testimony went to its weight, not the admissibility thereof. Similarly, the fact that Giza’s testimony was contradicted by that of her husband did not render her testimony inadmissible. The conflict in the testimony of husband and wife witnesses was for the jury to resolve.

Appellant argues that Maxine Cornick’s testimony that appellant had shown her a gun similar to the murder weapon five months prior to the crime should also have been excluded. Appellant’s possession of the gun was too remote in time, it is argued, to have been relevant. Appellant also asserts that Cornick’s inability to identify specifically that the gun possessed by appellant was the murder weapon rendered Cornick’s testimony inadmissible.

“ ‘The question of remoteness, which is basically one of relevance, is properly vested in the discretion of the trial court, and its decision thereon will not be reversed unless a clear abuse of discretion is shown.’ ” Commonwealth v. Sullivan, 372 Pa.Super. 88, 91, 538 A.2d 1363, 1365 (1988), quoting Tolentino v. Bailey, 230 Pa.Super. 8, 13, 326 A.2d 920, 922 (1974). In Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974), the Supreme Court observed that a defendant’s possession of a weapon that could have been used to commit the crime is relevant. The Court explained that such evidence:

is relevant to show that the defendant owned or had access to an implement with which the crime could have been committed.
The possession by the defendant of a weapon or implement of crime is relevant even though there is no evidence that it was used in the commission of any particular crime, but there must be evidence that some crime was committed.
The possession or ownership of the weapon or implement of crime must be reasonably proximate to the commission of the crime. If too great a period has elapsed between the commission of the crime and the period of possession or ownership, the evidence would be too remote and hence inadmissible.

Id., 455 Pa. at 316 n. 8, 314 A.2d at 249 n. 8, quoting 1 Wharton’s Criminal Evidence § 211 at 441-442 (13th ed. C. Torcia 1972). In Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976), the Supreme Court concluded that the defendant’s possession of automatic rifles at the time of his arrest, eighteen months after the shooting of two police officers, was admissible on the ground that the jury could reasonably infer therefrom that the defendant had participated in the shooting. In rejecting the defendant’s argument that his possession of the weapons was too remote in time, the Shoatz Court said:

With regard to the argument of the interval of time that dissipated any relationship that may have normally flowed from the possession and the connection with the event, it must be remembered that such a consideration is one for a jury to resolve in evaluating the weight of the probative value of the offered evidence and not its competency.

Id. at 565, 366 A.2d at 1226. See: United States v. Covelli, 738 F.2d 847, 855-856 & n. 14 (7th Cir.1984), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984) (testimony concerning defendant’s possession of handgun on two occasions, once three years prior to and once seven months prior to shooting, was admissible); United States v. Zappola, 677 F.2d 264, 270 (2d Cir.1982), cert. denied, 459 U.S. 866, 103 S.Ct. 145, 74 L.Ed.2d 122 (1982) (testimony that defendant possessed handgun six months prior to crime was properly admitted as evidence of access to weapon); Commonwealth v. Clark, 280 Pa.Super. 1, 5-7, 421 A.2d 374, 376-377 (1980), aff'd, 501 Pa. 393, 461 A.2d 794 (1983) (testimony regarding defendant’s possession of knife five weeks after commission of crime admissible even though victim was unable to identify knife). See also: Commonwealth v. Coccioletti, 493 Pa. 103, 110, 425 A.2d 387, 390 (1981); Commonwealth v. Lark, 316 Pa.Super. 240, 254, 462 A.2d 1329, 1336 (1983), aff'd, 505 Pa. 126, 477 A.2d 857 (1984).

When the principles of law in these cases are applied to the instant case it is readily apparent that the trial court did not abuse its discretion by allowing Maxine Cornick to testify regarding appellant’s possession of a handgun five months before the shooting.

After the jury had been instructed upon the applicable law and had retired to deliberate, it requested the trial court to repeat the law pertaining to first and second degree murder. Defense counsel thereupon asked the court to recharge the jury on all degrees of homicide. The trial court declined this request and addressed only the jury’s specific request. This is now asserted as error. “The scope of supplemental instructions given in response to a jury’s request rests within the sound discretion of the trial judge. He may properly confine supplemental instructions to the particular question asked by the jury despite a defendant’s request for additional instructions.” Commonwealth v. Haddle, 271 Pa.Super. 418, 422, 413 A.2d 735, 738 (1979). See also: Commonwealth v. Perkins, 473 Pa. 116, 131-132, 373 A.2d 1076, 1083-1084 (1977); Commonwealth v. Boone, 467 Pa. 168, 180-181, 354 A.2d 898, 904 (1975). Instantly, we perceive no abuse of discretion in the trial court’s confining its supplemental instructions to the specific areas of the jury’s inquiry.

Also asserted by appellant as error is the trial court’s allowing the jury to take the murder weapon out with it during its deliberations. The law applicable to this is as follows:

‘Decisions as to what exhibits may be taken out[] by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Sparks, 351 Pa.Super. 320, 327-328, 505 A.2d 1002, 1006 (1986); Commonwealth v. Lybrand, 272 Pa.Super. 475, 484, 416 A.2d 555, 560 (1979); Commonwealth v. Merbah, 270 Pa.Super. 190, 196, 411 A.2d 244, 247 (1979). See also: Pa.R.Crim.P. 1114. To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that “ ‘the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record....'" Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984).’

Commonwealth v. Riffert, 379 Pa.Super. 1, 22, 549 A.2d 566, 577 (1988), quoting Commonwealth v. Thomas, 372 Pa.Super. 349, 363, 539 A.2d 829, 836-837 (1988). Other appellate decisions have consistently refused to find an abuse of discretion where the murder weapon was allowed to be taken out with the jury. See: Commonwealth v. Hobson, 484 Pa. 250, 254-256, 398 A.2d 1364, 1366-1367 (1979) (revolver); Commonwealth v. Datesman, 343 Pa.Super. 176, 188, 494 A.2d 413, 419 (1985) (shotgun). Similarly, we find no abuse of discretion here.

We turn now to appellant’s many assertions that counsel rendered ineffective assistance. In evaluating claims of ineffective assistance of counsel we utilize the following approach:

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), alio, denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). Moreover,

“[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). Having evaluated appellant’s many claims of ineffectiveness of trial counsel in light of the foregoing principles, we conclude that appellant has not met her burden of proving that trial counsel was constitutionally ineffective. Our discussion of each of these many contentions, therefore, will be brief.

Appellant contends that trial counsel was ineffective because he refrained from calling character witnesses in the mistaken belief that they would be subject to cross-examination regarding her arrest in Iowa on a charge of arson. That such cross-examination would not have been permitted is clear. See: Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). However, counsel assured the post-verdict court that he had been aware that the Commonwealth would not have been permitted to so cross-examine defense character witnesses and testified that his concern was with the fact that appellant did not enjoy a good reputation in the community in which she lived. Because of this he was fearful that the Commonwealth would also be able to call character witnesses who would rebut any testimony by defense witnesses that appellant enjoyed a good reputation. This matter was discussed by trial counsel and his client and it was agreed mutually that character witnesses would not be called. This was a reasonable decision intended to serve appellant’s interest. The trial court did not err in denying relief on this ground. Cf. Commonwealth v. Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987) (“[C]ounsel’s concern, that the potential harm from cross-examination of character witnesses outweighed the doubtful value of their testimony, was a reasonable basis for not pursuing potential character witnesses or presenting character evidence.”).

Appellant’s contention that counsel ineffectively conducted voir dire examination of prospective jurors is also lacking in merit.

The single goal in permitting questioning of prospective jurors is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). However, it is not intended to provide appellant with a better basis upon which to utilize his peremptory challenges. The inquiry should be strictly confined to disclosing qualifications or lack of qualifications and should focus on whether a juror has formed a fixed opinion as to an accused’s guilt or innocence. Id.

Commonwealth v. Hathaway, 347 Pa.Super. 134, 142-143, 500 A.2d 443, 447 (1985). See also: Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983); Commonwealth v. Myers, 376 Pa.Super. 41, 545 A.2d 309 (1988). Moreover,

questions which are “designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case” should not be permitted. Commonwealth v. Werts, supra, 483 Pa. [222] at 224, 395 A.2d [1316] at 1317 [ (1978) ], quoting Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973).

Commonwealth v. Merrick, 338 Pa.Super. 495, 500-501, 488 A.2d 1, 3 (1985). For this reason, it has been held improper to ask a juror about his or her attitude regarding the insanity defense, Commonwealth v. Merrick, supra, or about gang related incidents. Commonwealth v. Wilson, 482 Pa. 350, 354-355, 393 A.2d 1141, 1144 (1978). Similarly, it would have been improper in the instant case to interrogate prospective jurors regarding their attitudes on appellant’s adultery. Because there is no substantive merit in appellant’s underlying argument, her trial counsel will not be deemed ineffective for failing to examine prospective jurors on such a matter.

There also is no merit in appellant’s suggestion that counsel was ineffective for accepting a juror whom he had previously challenged for cause. Although this prospective juror initially had answered that she would be more likely to believe a policeman’s testimony, subsequent questioning established that she would be able to apply the court’s instructions regarding witness credibility equally to police and lay witnesses alike. It was for this reason, that the trial court had refused a challenge for cause.

The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

Commonwealth v. Colson, supra at 454, 490 A.2d at 818. See also: Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987); Commonwealth v. Hashem, 363 Pa.Super. 111, 525 A.2d 744 (1987). Inasmuch as the trial court had found that the witness was able and willing to follow the court’s instructions regarding the credibility of witnesses, trial counsel will not be deemed ineffective for failing to use a peremptory challenge to exclude the same juror. See: Commonwealth v. Copeland, 381 Pa.Super. 382, 392-394, 554 A.2d 54, 59 (1988).

Appellant argues also that trial counsel was ineffective for failing to request the trial court to instruct the jury that: (1) the credibility of Commonwealth witnesses Shaw, Giza and Cornick should be subjected to more careful scrutiny because of their delay in coming forward; and (2) appellant’s testimony about the intruder shooting her husband was entitled to be favorably viewed because it was a spontaneous utterance. These assertions, however, are unsupported by established evidentiary principles; and counsel will not be deemed ineffective for failing to make such requests. Moreover, the trial court fully and adequately instructed the jury on the issue of the credibility of witnesses. “Where the substance of the requested charge is adequately and clearly conveyed, the court’s failure to give the verbatim instruction [suggested] by appellant is not error.” Commonwealth v. Freeman, 295 Pa.Super. 467, 479, 441 A.2d 1327, 1333 (1982). See also: Commonwealth v. LaMassa, 367 Pa.Super. 54, 58, 532 A.2d 450, 452 (1987); Commonwealth v. Rhem, 283 Pa.Super. 565, 576, 424 A.2d 1345, 1351 (1980). There is no substantive merit in appellant’s contention.

The claim that trial counsel was ineffective for failing to raise as an issue that appellant’s right to a speedy trial was violated because of the delay between 1972 and the filing of the complaint in 1985 is lacking in merit. “Passage of time between crime and arrest is not a matter within the context of Sixth Amendment speedy trial rights. Only a formal indictment, information or arrest, any of which binds an accused to respond to a criminal charge, invokes Sixth Amendment privileges. Once a citizen’s liberty is restrained, [her] speedy trial rights are activated.” Commonwealth v. Arnold, supra at 360, 480 A.2d at 1074. Equally lacking in merit is appellant’s contention that counsel was ineffective for not asserting constitutional violations of due process and equal protection because of the failure of the Commonwealth witnesses to come forward promptly. We have already discussed these contentions at length, and have found the underlying issues to be devoid of merit.

The remaining contentions of ineffectiveness discussed in appellant’s brief are nothing more than a hindsight analysis of strategic decisions made and trial tactics adopted by trial counsel. In essence, appellant takes issue with trial counsel’s investigation and evaluation of the case, his examination and cross-examination of witnesses at trial, his arguments to the jury and his failure to object to arguments advanced by the Commonwealth, as well as numerous other decisions made by counsel. We have examined these contentions and have reviewed the trial transcript and the testimony provided at the several post-trial evidentiary hearings. Our review has disclosed no basis for finding trial counsel constitutionally ineffective.

The final argument made by appellant is a blanket assertion that the trial court failed to provide an in depth review of issues in its post-trial opinion. We find this argument patently unfounded. The record discloses that the trial court allowed appellant to file several supplemental post-trial motions and heard testimony thereon. The court thereafter prepared a twenty page opinion in which most, if not all, of appellant’s many contentions were specifically addressed. On appeal, we have determined that appellant’s numerous arguments were lacking in merit. Some of those arguments misperceived established principles of law, and others were made without citation to authority. That the trial court’s discussion of such arguments was brief did not imply a lack of diligence by the court but only a lack of merit in appellant’s contentions. We have reviewed appellant’s contentions and have found no basis for disturbing the jury’s verdict.

The judgment of sentence is affirmed.

      . Anna Akers married Gary Wolfe prior to the filing of the complaint.

      . Charges of murder, voluntary manslaughter and involuntary manslaughter were brought under and pursuant to the Penal Code of June 24, 1939, P.L. 872, §§ 701 and 703, 18 Pa.C.S.A. §§ 4701 and 4703.

      . A 1938 divorce case decided by the Maryland Court of Appeals and relied upon by appellant is inapposite and provides no support for appellant’s contention that a witness’s failure to disclose evidence promptly renders his or her testimony inadmissible as a matter of law. See: Jones v. Jones, 174 Md. 522, 199 A. 513 (1938).

      . Appellant was subsequently acquitted of this charge.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    572 A.2d 758
    George K. MOY and Carol Rosen Moy, His Wife, on Behalf of Themselves and all Others Similarly Situated, Appellant, v. SCHREIBER DEED SECURITY CO., a Pennsylvania Corporation and Marvin Schreiber an Individual, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1989.
    Filed March 30, 1990.
    Petition for Allowance of Appeal Denied Aug. 14, 1990.

      Barbara Cymerman, Pittsburgh, for appellants.
    William A. Stewart, III, Pittsburgh, for Schreiber Deed Sec., appellee.
    James A. Buddie, Pittsburgh, for Marvin Schreiber, appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

George and Carol Moy, Appellants, filed this civil action as a class action suit against Schreiber Deed Security Co. [Schreiber Deed], and Marvin Schreiber individually. Appellants claimed that when conducting settlements for real estate purchase closings, Schreiber Deed charged a settlement fee and a disbursement fee in addition to the premium for the title insurance in violation of the Title Insurance Companies Act [Act] and the Unfair Trade Practices and Consumer Protection Law [CPL]. Class certification was granted for all purchasers of title insurance from Schreiber Deed during the period from February 4, 1981 to the date of final judgment.

The case was tried non-jury and the court rendered a verdict in favor of both defendants. After post-verdict motions, the trial court held that the verdict was not against the weight of the law or the evidence, and that the case should be dismissed for lack of subject matter jurisdiction.

After commencement of the trial, Schreiber Deed raised the question of subject matter jurisdiction, arguing that the insurance commissioner had exclusive jurisdiction over this case, under 40 P.S.A. § 910-49. Section 910-49 provides in pertinent part that any person aggrieved by any action of the commissioner shall have the right to file a complaint with the commissioner and to have a hearing thereon before the commissioner. The trial court ruled that the class plaintiffs in this case were persons aggrieved by an action of the Commissioner, and this action consisted of approving Schreiber Deed’s rate manual in which settlement and disbursement fees were authorized. The court concluded that the Moys were required to file their complaint with the insurance commission, and that they had failed to exhaust their administrative remedies. Therefore, it dismissed the case for lack of subject matter jurisdiction.

We will first discuss the issue of subject matter jurisdiction. On appeal the Moys base their claim for relief on violations of the Title Insurance Act, and the Pennsylvania Consumer Protection Law. However, on closer inspection, it is clear that the Moys are essentially arguing that a violation of the Title Insurance Act provides a basis for a successful claim under the CPL. It appears that they have decided not to press, on appeal, any claims based on misrepresentations made by Schreiber to the Moys concerning the purpose of the settlement and disbursement fees, which may constitute unfair or deceptive acts independently violative of the CPL. Instead, they have insisted that just as an insured may maintain a cause of action under the CPL for violations of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, 40 P.S. § 1171.2, the insured may maintain a cause of action under the CPL for violations of the Title Insurance Act. See, Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986).

We agree that a violation of the Title Insurance Act may, without more, provide a basis for a claim for relief under the CPL. Although, we know of no cases in which such a claim has been made, Pennsylvania courts have repeatedly held that violation of other statutes may also be violations of the CPL. Id., citing inter alia, Culbreth v. Lawrence J. Miller, Inc., 328 Pa.Super. 374, 477 A.2d 491 (1984) (regulation of public adjusters and their contracts possible under both the CPL and the Public Adjuster Law); Pennsylvania Bankers Association v. Commonwealth, Bureau of Consumer Protection, 58 Pa.Commw. 170, 427 A.2d 730 (1981) (regulation of banks possible under both the CPL and the Banking Code).

We hold that Appellant’s allegations concerning Schreiber’s violations of the Title Insurance Act in unlawfully charging settlement and disbursement fees, if proved, may also be violations of the CPL. However, this finding does not necessarily imply that the question of the violation of the Title Insurance Act is properly before the court.

We have held that a cause of action initiated under the Unfair Insurance Practices Act is not an action properly within the court’s jurisdiction, and that the provisions of that Act are enforced by the Insurance Commissioner. Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987). Further, in a recent case, Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988) this court held that if, logically, in order to determine whether Appellee violated the CPL, it must first be determined whether Appellee violated the Unfair Insurance Practices Act, then since that initial determination is not within the authority of a court to decide, it is not within the authority of a court to entertain a claim under the CPL. In other words, whether violation of the Unfair Insurance Practices Act is raised as a primary claim, as in Hardy, or as a secondary claim as in Gordon, an alleged violation of the Unfair Insurance Practices Act will not be entertained by the court.

In this case, the Moys are claiming a violation of the CPL, which is based on a violation of the Title Insurance Act. This claim is equivalent to that which was pressed in Gordon, except that the underlying violation is a violation of the Title Insurance Act. Moreover, neither the Title Insurance Act, nor the Unfair Insurance Practices Act provides a private right of action for the insured, and instead its statutory provisions give individuals or classes of individuals the right to file a complaint with the commissioner and have a hearing before the commissioner. Furthermore, the Unfair Insurance Practices Act and the Title Insurance Act use identical language in their respective statutory provisions. They both state that, “any ... person aggrieved by an action of the Commissioner ... shall have the right to file a complaint with the Commissioner and to have a hearing thereon with the Commissioner. Compare, P.S.A. 40 § 910-49(a), Title Insurance Act, and P.S.A. 40 § 1197(a), Unfair Insurance Practices Act.

Therefore, we hold that the same reasoning applied in Gordon concerning the Unfair Insurance Practices Act and the CPL applies with equal force to the case before us concerning violations of the Title Insurance Act and the CPL. We will not entertain such a claim for the violation of the CPL and the Title Insurance Act prior to Appellant’s presenting their grievance before the Commissioner.

Appellants claim that they are not aggrieved by any act of the Commissioner. Instead, they claim they are aggrieved by the actions of a specific title insurance agent which charged them certain fees. However, the Commissioner approved these fees when she approved the rate manual. Every title insurance company is required to file, with the Commissioner, its manual of classifications, rules, plans, schedules of fees, commissions payable to applicants for title insurance, etc., P.A.S. 40 § 910-37. Schreiber Deed, as an agent of a title insurance company, was required to comply with this rate manual. P.A.S. 40 § 910-37(h). At all times relevant to this class action, Schreiber Deed Security Company was a licensed agent of First American Title Insurance Company or Commonwealth Land Title Insurance Company. Both companies had identical language in their manuals allowing Schreiber Deed to levy a disbursement fee on the seller of real estate, and a settlement fee for real estate closings outside the title insurance company’s office. At all relevant times, these manuals had been approved by the Commissioner, and therefore Appellants are aggrieved by the act of the Commissioner authorizing such fees, and allowing Schreiber Deed to charge such fees. Because the Appellants are “aggrieved by an action of the Commissioner,” they must first raise their grievance before the Commissioner, according her the first opportunity to apply her expertise. Taylor v. Commonwealth of Pennsylvania Insurance Department, 86 Pa.Commw. 486, 485 A.2d 1228 (1984).

We therefore affirm the trial court’s holding that the Appellants should have brought their case to the Insurance Commissioner pursuant to 40 P.A.S. § 910-49. We will not reach the merits of this appeal since we find the court correctly decided the issue of suject matter jurisdiction.

Order affirmed.

      . Appellants specifically rely on section 910-1(5) of the Act in which the word “fee" is defined. It is rather peculiar, at best, to base a claim for relief on a definition. Definitions do not contain prescriptions from which a plaintiff can derive a set of obligations or prohibitions, they merely define a word for use in those subsequent sections of the Act where the obligations of the title insurance companies, the insurance commissioner, and the agents are delineated. Appellants do not discuss any other section of the Act, so it is therefore unclear which section of the Act Schreiber Deed allegedly violated.


author: BECK, Judge.

text:
    572 A.2d 762
    Stacy DYER, Appellant, v. The TRAVELERS, Designee of the Pennsylvania Financial Responsibility Assigned Claims Plan.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1989.
    Filed April 3, 1990.

      Arnold H. Winicov, Philadelphia, for appellant.
    Jeffrey P. Hoyle, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and BECK, JJ.
   BECK, Judge.

Under the Motor Vehicle Financial Responsibility Law is the Assigned Claims Plan insurer liable to a claimant where the claimant has obtained an arbitration award against the tortfeasor, but where the claimant has not released the tortfeasor? We find that the Assigned Claims Plan is not liable to the claimant and we affirm the trial court.

Appellant Stacy Dyer appeals an order granting summary judgment in favor of appellee The Travelers, designee of the Assigned Claims Plan, under the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) 75 Pa. Cons.Stat.Ann. §§ 1701-1798 (Purdon Supp.1989). Dyer sustained injuries as a result of an automobile accident. All persons and all vehicles involved in the accident were uninsured. Dyer filed suit against Timothy Brown, the driver of the vehicle in which she was riding, and Leonard Ta Deo and John Field, respectively the driver and owner of the vehicle that injured her. Dyer obtained an arbitration award of $10,000 against Brown and Ta Deo, collectively referred to as the “tortfeasors”. The arbitration panel found in favor of Field. No appeal having been taken, the arbitration award is final.

Dyer subsequently filed a complaint against The Travelers seeking recovery from the Assigned Claims Plan. Both parties filed motions for summary judgment. The trial judge granted The Travelers’ motion based on his conclusion that the arbitration award to Dyer extinguished The Travelers’ subrogation right. A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In reviewing an order granting summary judgment, the appellate court examines the record in the light most favorable to the non-moving party, and will not disturb the trial court’s order absent an error of law or manifest abuse of discretion. Young v. Eastern Engineering and Elevator Company, Inc., 381 Pa.Super. 428, 430-434, 554 A.2d 77, 78-79 (1989). With this standard in mind, we review Dyer’s claims.

Dyer argues on appeal that she has not prejudiced The Travelers’ right of subrogation because the arbitration award is assignable to The Travelers. She also contends that the award represents only compensation for pain and suffering, and therefore The Travelers retains its right of subrogation for her economic claims. Both of these arguments are meritless.

The Assigned Claims Plan Insurer’s right of subrogation is authorized by statute:

§ 1756. Subrogation
The Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of this Commonwealth, reimbursement for benefits or coverages paid, loss adjustment costs and any other sums paid to an eligible claimant under this subchapter.

75 Pa.Cons.Stat.Ann. § 1756 (Purdon Supp.1989). The trial judge found that the arbitration award prejudiced The Travelers’ right of subrogation, and that appellant was therefore precluded from recovering from The Travelers under Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989).

Melendez involved a claimant who, without the consent of the Assigned Claim Plan designee, obtained an arbitration judgment against and executed a release in favor of the driver of the uninsured vehicle that injured her. The Superior Court concluded that section 1756 of the MVFRL was enacted to effectuate the same results as section 2000(e)(2) of the Uninsured Motorists Act, which denies coverage under that statute when the party seeking benefits has, “without the written consent of the insurer, ... prosecuted] to judgment any action against any person who may be legally liable therefor.” Pa.Stat.Ann. tit. 40 § 2000(e)(2) (Purdon 1971). The court held that claimants seeking recovery from the Assigned Claims Plan forfeit their right to recover from the Plan when the claimants extinguish the insurer’s right of subrogation against the tortfeasor. 384 Pa.Super. at 50, 557 A.2d at 768.

As in Melendez, the appellant in this case has obtained an arbitration award against the tortfeasors. Unlike Melendez, she has not executed a release in favor of any of the tortfeasors. She argues that because she can assign the award to The Travelers, she has not “extinguished” Travelers’ right of subrogation. We disagree, and hold that claimants who have previously prosecuted a claim against a tortfeasor to a final arbitration award extinguish the subrogation right of the Assigned Claims Plan designee, and are precluded from recovery under the Plan.

Under the MVFRL the right to subrogation is the right of the insurer to stand in the shoes of the claimant and assert the claimant’s rights against the tortfeasor. Daley-Sand v. West American Insurance Company, 387 Pa.Super. 630, 638-639, 564 A.2d 965, 969-70 (1989). Dyer’s actions without The Travelers consent deprived The Travelers of the right to stand in Dyer’s shoes. As The Travelers correctly argued in its appellate brief, “... in any litigation the parties involved are presented with choices at every stage of the proceedings. Strategy and efforts at compromise pervade ... the case. The degree of ... diligence and competence with which a case is handled often means the difference between great success and utter failure.” Brief of Appellee at 8. Under the MVFRL the statutory right of subrogation includes the right to decide how to proceed against a tortfeasor in order to best preserve the funds in the Assigned Claims Plan.

In the instant case, Dyer proceeded without consent of The Travelers and The Travelers was therefore not in a position to assert Dyer’s rights. The Travelers had no control over any aspect of the proceedings which resulted in the arbitration award. • Appellant so prejudiced the Travellers’ right to subrogation as to extinguish it.

This result is consistent with the Commonwealth’s public policy of preserving the fund in the Assigned Claims Plan. “The Assigned Claims Plan was established to protect certain claimants who would otherwise be unprotected. Frustrating the subrogation rights of an ACP designated insurer would no doubt weaken the Plan.” Melendez, 384 Pa.Super. at 53, 557 A.2d at 769. It would be imprudent policy to place the Plan in a position where it would be forced to accept the consequences of a claimant’s actions which were taken without its consent. Equally important, Melendez dictates this result. The only difference between the instant case and Melendez is that in the instant case Dyer did not release the tortfeasors. We fail to see why the fact of release should alter the very strong public policy which mandates protecting the integrity of the fund in the Assigned Claims Plan.

Appellant next contends that because the arbitration action sought damages only for pain and suffering, not economic loss, The Travelers’ right of subrogation to her economic claims is not prejudiced. She argues that The Travelers could step in and pursue her claim for economic loss. This argument is without merit.

The Report and Award of Arbitrators does not support Dyer’s assertion that the arbitrators awarded damages only for pain and suffering, and not for economic loss. Even if it did, Dyer, and therefore the Assigned Claims Plan, would be barred from pursuing damage for economic loss in a subsequent lawsuit. A final, valid, judicial determination on the merits by a court of competent jurisdiction bars any future litigation between the same parties on the same cause of action. It bars relitigation of issues raised, as well as issues that could have been but were not raised. Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 466-467, 487 A.2d 1372, 1376 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986). Since Dyer could have sought damages for her economic claim in her action against The Travelers, she would now be barred from bringing a second action for her economic claim. An arbitration award from which no appeal is taken has the effect of a final judgment on the merits. Ottaviano v. Southeastern Pennsylvania Transportation Authority, 239 Pa.Super. 363, 369-370, 361 A.2d 810, 814 (1976).

Order affirmed.


author: MONTEMURO, Judge:

text:
    572 A.2d 765
    Joann MARCOLONGO, Appellee, v. Terrence T.J. NICOLAI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed April 3, 1990.

      William A. George, Media, for appellant.
    Daniel R. Fredland, Media, for appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

This appeal arises from an action in equity filed by JoAnn Marcolongo, seeking specific enforcement of an agreement she had executed with her former husband, Terrence T.J. Nicolai, on April 9, 1980. In a counterclaim, Nicolai sought to exercise his rights under a term of the agreement which would have resulted in the partition and sale of certain properties, with the net proceeds to be divided equally between the parties. We have reviewed the record, and find that the trial court’s findings of fact are well supported by the evidence:

1. Under Deed dated September 14, 1978, Terrence T. Nicolai and JoAnn Nicolai, his wife, the parties herein, were conveyed title as tenants by the entireties to certain real estate located at the intersection of the northwesterly side of MacDade Boulevard with the northeasterly side of Cedar Avenue, located in the township of Ridley, Delaware County, Pennsylvania, which Deed is recorded in the Office for the Recording of Deeds of Delaware County in Deed Book 2665 at page 754.
2. Under Deed dated September 12, 1979, Terrence I. [sic] Nicolai and JoAnn, his wife, the parties herein, were conveyed title as tenants by the entireties to certain real estate located and known as 634 Childs Avenue, located in the Township of Upper Darby, Delaware County, Pennsylvania, which Deed is recorded in the Office for the Recording of Deeds of Delaware County in Deed Book 2710 at page 736.
3. The parties also owned ten other parcels in Delaware County as tenants by the entireties as of the early part of 1980.
4. By Agreement dated April 9, 1980, Terrence Nicolai and JoAnn Nicolai executed an agreement in which they recited that they “are at this time, or intend to be in the immediate future, separated” and in which agreement they made various covenants concerning “their mutual and business real estate interests”.
5. The Agreement, contemplated the parties’ possible divorce and provided that, upon divorce, Terrence Nicolai had right to full ownership of the following ten (10) properties enumerated therein, all of which are located in Delaware County:
1. 306 Gorsuch Street, Folsom, PA
2. 905 Summit Street, Darby, PA
3. 414 Colwyn Avenue, Colwyn, PA
4. 104 South 3rd Street, Colwyn, PA
5. 20 South 2nd Street, Colwyn, PA
6. 448 Clifton Avenue, Sharon Hill, PA
7. 447-449 Sharon Avenue, Sharon Hill, PA
8. 1001 Andrews Avenue, Collingdale, PA
9. 300 Woodlawn Avenue, Collingdale, PA
10. 401-409 McDade Boulevard, Glenolden, PA Similarly, upon divorce, the Agreement granted JoAnn Marcolongo (then JoAnn Nicolai) the right to full ownership of the following properties, which are located in Delaware County:
1. 634 Childs Avenue, Drexel Hill, Upper Darby Township, PA
2. Parcel at the corner of Cedar Avenue & [MacJDade Boulevard, Holmes, Ridley Township, PA
6. On September 11, 1981, the parties were divorced from the bonds of matrimony by a Final Decree entered in the Court of Common Pleas of Delaware County, Pennsylvania, No. 80-13903.
7. The parties’ Agreement entered on April 9, 1980, contained the following language:

DIVORCE

Upon the granting of a Final Decree in Divorce, dissolving the marriage now existing between the parties, this Agreement shall at the election of either party, become null and void; provided that, however, should neither party elect to void this agreement six months after the granting of the final Decree in Divorce, then Husband and Wife hereby agree that Wife shall be entitled to full and individual ownership of the properties located at 634 Childs Avenue, Drexel Hill, Pennsylvania, and the real estate located at the corner of MacDade Boulevard and Cedar Avenue, Holmes, Delaware County; and Husband shall have full and individual ownership of all other real estate enumerated in this agreement.

******

If neither party should elect to void this Agreement within six months after the granting of a final Decree in Divorce, then the aforementioned terms concerning division of real estate shall be in full and final settlement of all real estate rights of the parties under Pennsylvania Law concerning division of entireties property upon divorce.

VIOLATION AND DEFAULT

If either party should violate the right of the other party to the sole and exclusive use and enjoyment of any real estate or corporation or business, as aforementioned, or if either party should cause or allow any piece of real estate to be in arrears by more than ninety days, on payment of any mortgage or utility or tax payment, or if either party should declare personal bankruptcy then the. other party may, at his or her election, choose and avail himself or herself of one or more of the following remedies:

1. Pay the aforementioned arrearages on behalf of the other party, and thereby have a lien against the other party for the amount paid;
2. Order the immediate partition and sale of the property affected by the said arrearages, with the proceeds from the sale of said property to be divided equally between the parties;
3. Order the immediate partition and sale of all real estate held as tenants by the entireties by Husband and Wife, with the proceeds of said sale being divided equally between Husband and Wife;
4. Compel the other party to pay the said arrearages immediately. If either party should fail to maintain the real estate under his or her control, by the terms of this Agreement, in a good and presentable manner, then the other party shall have one or more of the above listed rights regarding that property or all properties.
8. Neither party took affirmative steps to void the Agreement within the six-month period after the granting of the final decree of divorce as permitted by the terms of the Agreement.
9. Subsequent to the execution of the Agreement dated April 9, 1980, the plaintiff became delinquent in certain financial obligations pertaining to both the realty located at 634 Childs Avenue, Upper Darby Township, and the realty located at the intersection of MacDade Boulevard and Cedar Avenue located in Ridley Township. These obligations were undertaken by both parties pri- or to the signing of the Agreement. Plaintiff also became delinquent with respect to certain real estate tax obligations pertaining to these properties. Plaintiff continues in default of such financial obligations and real estate tax obligations at the time of the filing of the instant proceedings.
10. In the early part of 1988, plaintiff's attorney requested defendant’s prior counsel to have defendant execute deeds to the properties enumerated in the Agreement, thereby placing the properties in the individual names of plaintiff and defendant as appropriate; however, defendant refused to execute such deeds.
11. Plaintiff desires to sell the Childs Avenue premises and the MacDade Boulevard and Cedar Avenue premises and to discharge all financial obligations owing thereon from the proceeds of such sales. Plaintiff is unable to complete such transactions due to the fact that defendant’s name remains on the titles to the properties.

Op. of Trial Court, May 18, 1989, 1-6.

Initially, we find no error in the trial court’s legal conclusions that the parties’ April 9, 1980, Agreement was a valid one, and that under the unambiguous terms of that Agreement, equitable title to the Childs Avenue property and the MacDade Boulevard and Cedar Avenue property vested in Marcolongo six months after the entry of the Final Decree in Divorce: March 11, 1982. The same can be said for the ten properties assigned to Nicolai under the terms of the April 9, 1980, Agreement. The fact that the Agreement does not include a specific time frame or process concerning the formal execution of the documents necessary for the transfer of legal title to the various properties does not render the contract unenforceable. From the language of the contract, construed as a whole, it was clearly the intention of the parties that, in the event neither voided the Agreement in the six month period, both would execute the necessary documents to transfer sole legal title in the described properties to the other party. As the trial court correctly noted, the “basic purpose of the Agreement” was to effect a “division of property.” Id. at 7. We find that the “doctrine of necessary implication” is applicable instantly:

In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other part’s right to receive the fruits of the contract.

Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 586, 546 A.2d 676, 679 (1988) (citations omitted). Thus, Marcolongo’s action for specific performance is based upon Nicolai’s implied agreement to execute the documents necessary to transfer sole legal title to the 634 Childs Avenue and the MacDade Boulevard and Cedar Avenue properties to Marcolongo. The trial court’s enforcement of this promise comports with the clear intentions of the contracting parties and avoids injustice. The terms of the Agreement, as negotiated and executed by both parties, were intended to result in the final settlement of the real estate rights of the parties. This final settlement amounted to a division of the properties between the parties, with the vesting of full and individual ownership in the divided properties in each party.

Nicolai claims that Marcolongo is not entitled to the relief ordered by the trial court, because she is in arrears on mortgage payments and tax debts on the two properties assigned to her under the Agreement. Nicolai argues that this fact, admitted by Marcolongo, entitles Nicolai to enforce his rights under the Agreement, and to order the partition and sale of the property with the proceeds from the sale of the property to be divided equally between the parties. We agree with the trial court that to allow such a result would not comport with the intention of the parties which is evident from a reading of the Agreement as a whole. It would be an unreasonable interpretation of the Agreement to find that the remedies provided under the “Violation and Default” section of the Agreement were intended to be available to a party who has refused “to perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made ...” Slater v. Pearle Vision Center, Inc., supra, 376 Pa.Superior Ct. at 586, 546 A.2d at 679 (citations omitted). Nicolai has refused to execute documents to transfer sole legal title in the two described properties to Marcolongo, thus preventing and frustrating the central purpose of the parties’ Agreement. Given that the vesting of sole legal title in properties once owned as entireties properties was the primary objective of the Agreement, allowing Nicolai to use the “Violation and Default” section of the Agreement to frustrate the entire purpose of the Agreement would result in an unreasonable interpretation of the terms of this Agreement. Moreover, Nicolai emphasizes in his appellate brief that he is suffering a detriment to his “continuing business interests [because] ... as the title report exhibits show, the properties are presently subject to delinquent tax and joint mortgage liens and actions thereon are presently pending against both parties.” Brief for Appellant at 10. We note that the order of the trial court states that as a condition to the placing of sole and exclusive legal title to the two properties in Marcolongo, “all mutual financial obligations of plaintiff and defendant owing on the respective properties to be conveyed to plaintiff shall be satisfied from the proceeds of the sale of said properties by plaintiff.” Order of Trial Court, May 18, 1989. Thus, we find that the trial court’s order appears to give to Nicolai precisely the relief he claims to need at this time.

Finally, Nicolai argues that the trial court erred in failing to admit evidence of bias to impeach the credibility of Marcolongo and other witnesses. This claim is meritless as Nicolai has failed to demonstrate how the exclusion of this proffered evidence prejudiced his case.

Order affirmed.

      . We note that the trial court characterized the terms of the parties’ Agreement as "inconsisten[t].’’ Op. of Trial Court, May 18, 1989, at 7. Although we find that the Agreement fails to outline specifics concerning the transfer of legal title between these parties, we do not find its terms to be inconsistent or contradictory. In any event, we rely upon the doctrine of necessary implication in affirming the trial court’s order in the case at bar. This doctrine is applicable even though a contract is not ambiguous. Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 587, 546 A.2d 676, 679 (1988) (citations omitted).


author: TAMILIA, Judge: DEL SOLE, Judge,

text:
    572 A.2d 769
    Francis McKELVEY, Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed April 4, 1990.

      Francis X. Melvin, Philadelphia, for appellant.
    Bayard H. Graf, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order granting summary judgment to appellee insurance company.

In the early morning hours of January 24, 1988, while appellant was sleeping at his vacation residence in the Poconos with his wife and two children, a loud noise awoke the family and the house shook. Appellant ran out of his bedroom to check on his children who were screaming, and as he did, he glanced off the bedroom door frame, injuring his shoulder. He discovered the crash was caused by a motor vehicle which had veered off the roadway into the deck of his house, separating the deck from the house.

Appellant filed suit against appellee, his automobile insurer, for first-party benefits for his injury, claiming the injury arose out of the maintenance or use of a motor vehicle. Appellee claims the injury was caused by appellant’s own negligence in running into the door frame. The trial court granted appellee’s motion for summary judgment, finding the instrumentality causing appellant’s injury was the bedroom door frame and not a motor vehicle.

Summary judgment should not be entered unless the case is free from doubt. Since the moving party has the burden of proving that no genuine issues exist as to the material facts, the record must be examined in a light most favorable to the non-moving party; in doing so all well-pleaded facts in the non-moving party’s pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988) (citations omitted).

Appellant argues the court erred in granting summary judgment to appellee because the main issue is whether appellant’s injury arose out of the maintenance or use of a motor vehicle which is a question of fact as much as law and is for the factfinder. We disagree, finding there was no genuine issue of material fact and appellee was entitled to judgment as a matter of law.

Appellee Prudential issued the automobile insurance policy under the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) which requires insurers to provide medical benefits in the event of injuries “arising out of the maintenance or use of a motor vehicle.” 75 Pa.C.S. §§ 1711, 1712. Appellant claims his injury arose out of the use of a motor vehicle because “but for” a car crashing into his home, he would not have jumped out of bed and run out of his bedroom, hitting his shoulder on the door frame. We cannot accept this argument. While we did use the less restrictive “but for” standard of causation in Varner v. Nationwide Mutual Insurance Company, 340 Pa.Super. 211, 489 A.2d 918 (1985), we did not ignore the extent of the relationship between the motor vehicle accident and the injuries sustained.

In Varner, the plaintiff suffered a fractured skull and fractured left shoulder after being in an automobile accident. While in the hospital for his injuries, plaintiff suffered complications due to medical maltreatment and he sought coverage for his additional loss from his no-fault carrier. The carrier argued the additional injuries did not arise out of the use of the motor vehicle but from medical maltreatment. We disagreed that the injuries did not arise out of the use of a motor vehicle since the medical maltreatment occurred during treatment of injuries directly and immediately received in the accident. We found it was probable that an individual would be hospitalized from a motor vehicle accident; therefore, there was a connection between the vehicle and injury and it was not mere chance or happenstance.

Causation was discussed in Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988). In denying the claim of Mrs. Roach, who was injured while riding a PAT bus when a fist-fight broke out between two passengers, we stated:

The fact that Mrs. Roach was on a bus was incidental to her injuries. Her injuries were caused by two men fighting, not the maintenance or use of a motor vehicle. The causal connection need not rise to the level of proximate causation; however, some connection must exist between the motor vehicle and the victim’s injuries. This connection must be more than mere happenstance. We, therefore, fail to find the requisite causal link between the injury and the use of a motor vehicle; hence, we find no requirement of coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Id., 380 Pa.Superior Ct. at 35, 550 A.2d at 1350 (citation omitted). Similarly, in Alvarino v. Allstate Ins. Co., 370 Pa.Super. 563, 537 A.2d 18 (1988), relied on by the trial court, an injury resulting from a dog biting a passenger on a van did not rise from the use of the van and, therefore, was not covered by the policy coverage of the van pursuant to the MVFRL, 75 Pa.C.S. §§ 1711, 1712; 40 P.S. 1009.101-1009.701 (Repealed).

Appellant in this case acted in response to a crash but it was his own conduct which caused his injury rather than any contact by or with the vehicle or the use or maintenance of the vehicle. In cases with a much stronger connection between the vehicle and the injury, we have denied relief sought by appellants. In Metzel, et al. v. State Farm Mutual Ins. Co., 389 Pa.Super. 30, 566 A.2d 600 (1989), this Court found that occupants of a Winnebego motor home were not entitled to benefits under the MVFRL for injuries sustained as a result of an explosion which occurred while the vehicle was being used for lodging purposes. The outer limit of assessing liability as it relates to use of an automobile while not actually engaged in its primary purpose, is Spisak v. Nationwide Mutual Ins. Co., 329 Pa.Super. 483, 478 A.2d 891 (1984). In Spisak, plaintiff’s decedent was killed when he and a female companion engaged in “compromising activities” in the back of his vehicle which had been parked off the road with the engine running, the occupants being overcome by carbon monoxide poisoning due to a faulty exhaust system. That situation and Metzel may be distinguished in that in Metzel, the injury was produced by an instrumentality (a defective propane tank valve) which was not an inherent part necessary to the use or maintenance of a vehicle, whereas in Spisak, the exhaust system of a motor vehicle, even when parked, is inherently related to the use or maintenance of a vehicle with its motor running. As announced in Schweitzer v. Aetna Life and Cas. Co., 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982), “[w]hile the casual connection need not rise to the level of proximate causation, for purpose of coverage under the No Fault Act, there must be some connections, more than mere chance or happenstance between the injuries sustained and the insured vehicle.” In Quinn v. By-Pass Garage Inc., 333 Pa.Super. 412, 482 A.2d 634 (1984), we held that injuries sustained by the insured when he fell from the upper-bunk of his motor home while parked overnight did not arise from use or maintenance of the motor vehicle.

Reaction to a crash when the party was outside of the zone of danger may be actionable for emotional distress if the party viewed an accident which terminated the life of the party’s child, as it is a reasonably foreseeable injury. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Where a party out of the zone of danger, unaware at the time of injury of the cause of the noise, becomes injured rushing to investigate the safety of his children, the use or operation of the vehicle is too remote to be assigned as the cause of injury. The shoulder injury was a mere accident and happenstance emanating from the appellant’s behavior and was not a foreseeable consequence of the vehicle’s collision with the deck. As such, it cannot be construed to be a result of the use or maintenance of an automobile as contemplated by the MVFRL, whether it be considered from the perspective of proximate cause or a lesser degree of causation contemplated by the act. Had the injury resulted from a fall or trip over the damaged deck in going to the scene of the accident, it is at least arguable that the injury was a result of the use or maintenance of the automobile. Here, it is not. The test is that although the insurance contract does not require the injury to be the proximate result, in the strict legal sense of the term, it does not extend to something distinctly remote, although within the line of causation. The claim of responsibility has to be deemed to possess the requisite articulation with the use or operation of the vehicle until broken by the intervention of some event which has no direct or substantial relation to the use or operation. Placed in that perspective, it logically follows that while the injury was traceable to the crash of the vehicle in the line of causation, it was not reasonably foreseeable as a consequence of the crash and it required the presence of too many extraneous and remote contingencies to account for the injury aside from the use and or maintenance of the vehicle. Awakening in the middle of the night and rushing to determine the well being of children in the house and accidently colliding with a door frame, although precipitated by the sound of the crash, cannot reasonably be related to the use and maintenance of an automobile.

Fox v. State Automobile Mutual Insurance Company, 314 Pa.Super. 559, 461 A.2d 299 (1983), as cited by the dissent, is factually distinguishable from the case at bar. In Fox, the plaintiff, in response to a loud crashing noise, rushed from her bed to check on her children, much like appellant in this situation. The difference, however, is that Fox was injured when she tripped over debris thrown from the accident, therefore, causing our Court to find her injury arose out of the use of a motor vehicle. In this situation, appellant was not injured due to the crash. He was injured because, in his haste to investigate a loud noise, he was negligent and ran into the bedroom door frame. A physical nexus between the crash and the injury was established in Fox. Here, there was none. It is reasonable to foresee that a physical change in the environment of the home, caused by a crash, could lead to an injury and, therefore, would be actionable if there was a logical relationship between the injury and the crash. Any loud noise in the middle of the night would result in prompt investigation as to the well being of children in the home. Unless certain as to the precipitating cause, such an investigation is more likely to be cautious and tentative rather than haphazard. No practical test of causation would lead to a cause of action against a party creating a noise, when the injured party suffered by his own action. Fox is clearly inapposite.

Thus, from the common sense, practical approach applied in the numerous cases analyzed and decided on the “use and maintenance of a vehicle”, it appears clear the facts of this case require a finding that the injuries sustained were not due to the use or maintenance of a vehicle within the meaning of the MYFRL. We find appellant’s injury resulted from hitting the door frame with his body and the fact that it was a motor vehicle which hit his deck was incidental to the injury sustained. It was mere happenstance that appellant ran into the door frame and injured his shoulder; the injury did not arise from the maintenance or use of a motor vehicle but from appellant’s own action of running from his bedroom without exercising due care. Because we find there was no genuine issue of material fact to be decided, the court properly entered summary judgment and we, therefore, affirm the Order of the trial court.

Order affirmed.

DEL SOLE, J., filed a dissenting statement.

DEL SOLE, Judge,

dissenting.

In my view this matter is controlled by this court’s decision in Fox v. State Automobile Mutual Insurance Company, 314 Pa.Super. 559, 461 A.2d 299 (1983). In that case the facts as set forth by our court are as follows:

... Mrs. Phyllis Fox was in bed in a second floor bedroom at her residence in Red Hill, Pennsylvania. Mrs. Fox’ sixteen-year-old daughter and two of her daughter’s girlfriends were asleep in the ground floor living room. At about that time, a motor vehicle driven by James A. King, Jr. crashed into the side of the home and came to rest in the livingroom. Upon hearing the crash, which sounded to her like an explosion, Mrs. Fox, fearing for her children’s safety, immediately rose from the bed, started down the steps to the living room, tripped over debris which had been thrown on the steps by the crash, fell and was injured.

Under that factual situation our court concluded “We hold that the injury in this case arose out of the use of a motor vehicle and, therefore, Mrs. Fox was entitled to no-fault benefits.” 314 Pa.Super. at 565, 461 A.2d 299.

I see no functional difference between the factual situation in Fox and the factual situation in this case. Further, the Majority’s reference to Fox causes me to conclude that there is no distinction between the two and that Fox is not clearly inopposite as the Majority suggests. In Fox as in this case, the accidents in both cases caused the claimants to leave the safety of their bed and proceed to investigate the noise caused by the accident. It was this factor which began the movement of these people and caused their injury. Any attempt to distinguish the case is, in my judgment, straining. Therefore, I would reverse the trial court’s grant of summary judgment in favor of the insurer.

      . Varner’s cause of action was brought under the now repealed Pennsylvania No-fault Motor Vehicle Insurance Act.