author: BROSKY, Judge.

text:
    664 A.2d 559
    MOTORISTS INSURANCE COMPANIES, Appellant v. Michelle S. EMIG, a/k/a Michelle S. Lance.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed July 27, 1995.

      Jeffrey Millin, Meadville, for appellant.
    Mary K. Karn, Erie, for appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This appeal is from the Order entered in an action in declaratory judgment declaring the underinsurance coverage on a policy of automobile insurance issued to appellee by appellant to be fifty thousand dollars ($50,000.00) per person and one hundred thousand dollars ($100,000.00) per occurrence.

Appellant, Motorists Insurance Companies, raises two issues on appeal. The first suggests that the trial court failed to apply the proper burden of proof that the statutory “Important Notice” of Section 1791 of the Motor Vehicle Responsibility Law (“the MVFRL”), 75 Pa.C.S.A. §§ 1701 et seq., was satisfied concerning notice of available insurance benefits. The second issue queries whether appellee’s signature on the policy change request form, which form indicated lower uninsurance/underinsurance (“UM/UIM”) coverages, together with receipt of the statutory “Important Notice”, constituted a waiver of UM/UIM coverages equal to the bodily liability limits of the policy. We affirm.

The pertinent facts underlying this cause of action are as follows:

Appellee was involved in an automobile accident on February 6, 1991. This accident is the genesis of the matter now before us. At the time of the underlying accident and prior thereto, appellee was insured by appellant under a policy of automobile insurance. In her initial application of February 28, 1990, appellant requested and ultimately received bodily injury liability coverage of fifty thousand dollars ($50,000.00)/ one hundred thousand dollars ($100,000.00) [50/100]. As part of her initial application, she also requested and received reduced UM/UIM coverages in the amount of fifteen thousand dollars ($15,000.00)/thirty thousand dollars ($30,000.00) [15/30] as permitted by Section 1734 of the MVFRL. Pennsylvania law requires insurers who issue motor vehicle liability policies in this Commonwealth to offer its customers UM/UIM coverages in amounts equal to the bodily injury liability limits of the customers’ policies. See 75 Pa.C.S.A. § 1791(6). Because of this mandate, appellee was required to execute a “waiver/acknowledgement” as part of her initial application of her right to receive UM/UIM coverages equal to the amount of the body liability limits of her policy. This she did. Appellee also signed her name at the end of the application, itself.

Prior to the renewal of the policy, which expired on August 28, 1990, appellee was involved in an automobile accident not the one here at issue. As a result, she was advised by her then counsel to raise her UM/UIM limits because they were too low. She complied with this suggestion by requesting UM/UIM limits of 50/100. Upon renewal of the policy, she received a declarations page evidencing renewal of the policy and showing the increased UM/UIM coverages equal to her bodily injury liability limits, ie., 50/100.

On December 15, 1990, appellee purchased a Plymouth Acclaim, coverage for which she wished to add to her then current policy of insurance with appellant. On January 31, 1991, appellee met with Leon Sommers, appellant’s agent. The purpose of this meeting was to add coverage for her newly purchased Plymouth Acclaim and to determine how she could reduce her policy premiums since coverage would now include the Plymouth. As a result of her discussion with Mr. Sommers, appellee executed a casualty policy change request form. As part of this change request, it is undisputed that appellee included the name of her new husband as an additional driver of the insured vehicles and the new Plymouth as a covered motor vehicle. It is also not disputed that appellee requested a first party medical expense benefit of five thousand dollars ($5,000.00) and executed a separate form for this added benefit. Additionally, to reduce her premium, the parties agree that appellee rejected stacking of UM/UIM coverages. To implement this rejection, she signed a separate waiver form.

On February 6, 1991, appellee was involved in the automobile accident which gave rise to the matter now before us. She settled her claim in the amount of the limits of the tortfeaser’s policy. Appellee then applied for UIM benefits under her own policy with appellant in the amount of fifty thousand dollars ($50,000.00). She was informed by appellant that the limit of her UIM coverage was fifteen thousand dollars ($15,000.00), instead. As a result of the dispute over the amount of UIM coverage which appellee’s policy affords, appellant instituted this declaratory judgment action. After a hearing, the trial court found that the policy in force at the time of the February 6, 1991 accident provided UIM coverage of 50/100 instead of 15/30, as claimed by appellant. This appeal followed.

I.

As stated before, Section 1791 of the MVFRL requires an insurer doing business in Pennsylvania to furnish the.policy applicant with a copy of the “Important Notice”. This notice must advise the applicant of the types and amounts of coverages which are required to be offered to him/her. This notice must also inform the applicant that he/she may purchase or reject these coverages. The applicant must also be made aware that he/she may purchase coverages in higher or lower amounts than those set forth in the “Important Notice”. Section 1791 provides in pertinent part as follows:

Notice of available benefits and limits
It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required:
IMPORTANT NOTICE
Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you....
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(6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000, because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident....
Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above.
Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.

75 Pa.C.S.A. § 1791.

Appellant is correct that the “Important Notice” required by Section 1791 operates as a conclusive presumption when the insurer strictly follows the mandate of that Section. In surance Company of the State of Pennsylvania v. Miller, 426 Pa.Super. 519, 627 A.2d 797 (1993); Botsko v. Donegal Mutual Ins. Co., 423 Pa.Super. 41, 620 A.2d 30 (1993), appeal denied, 536 Pa. 624, 637 A.2d 284 (1994). Appellant maintains that it has strictly followed the mandate of Section 1791, and appellee does not deny that she received the “Important Notice” when she signed the policy change request form. As a result, appellant contends, appellee’s signature on the policy change request form and her receipt of the statutory “Important Notice” operate as a conclusive presumption that she actually knew and understood that her UIM coverage limit was 15/30 instead of 50/100.

We believe that the conclusive presumption of Section 1791 with respect to any reduction of coverages of appellee’s UM7 UIM limits cannot be applied here since the record does not evidence a prerequisite compliance with Section 1734. Our reasoning follows in the discussion of issue number two, below.

II.

Section 1734, to which we have previously alluded, provides:

Request for lower limits of coverage
A named insured may request in writing the issuance of coverages under section 1731 (relating to availability, scope and amount of coverage) in amounts equal to or less than the limits of liability for bodily injury.

(Emphasis supplied). The coverages referred to with respect to Section 1731 are UM/UIM coverages. Section 1731 reads in pertinent part:

Availability, scope and amount of coverage
(a) Mandatory offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage)....

75 Pa.C.S.A. § 1731(a).

Section 1731(b) then defines UM coverage and sets forth the language to be used in the form which an insurer must have an insured sign if the latter wishes to reject this coverage. Subsection (c) defines UIM coverage and similarly provides language to be used in the rejection form for this coverage, as well. Subsection (c.l) details the specific procedure to be followed when an insured wishes to reject either or both coverages and explains the effect of such rejection(s). No similar forms or procedure for reduction of UM/UIM coverages, which is the focus of our concern here, are provided. Nevertheless, the legislature, in its wisdom, has provided for such contingency by its enactment of Section 1734.

In its prediction of how our supreme court would interpret Section 1734, the United States Court of Appeals for the Third Circuit in Nationwide Insurance Co. v. Resseguie, 980 F.2d 226 (3d Cir.1992), held that Section 1734 mandates that a request to reduce UIM coverage be in writing by the insured to be effective. In that case, Mrs. Resseguie, the sole insured, obtained an automobile insurance policy from Nationwide with bodily liability limits of 50/100 and UM/UIM coverages of 15/30. Prior to the policy renewal date and after the passage of the MVFRL, Nationwide mailed Mrs. Resseguie a copy of the statutory “Important Notice” advising her of the right to purchase UM/UIM coverages in amounts equal to her bodily liability limits under the policy. Nationwide also mailed her an option selection form. Nationwide automatically renewed Mrs. Resseguie’s policy with the higher UM/UIM coverages (i.e., equal to her bodily liability limits) because she had not returned the option form and advised her that she could contact her insurance agent if she wished to change this. Mrs. Resseguie, however, paid the premium for the higher UM/UIM coverages and received a policy reflecting this.

A few days thereafter, Mrs. Resseguie’s husband, a listed driver under the policy, orally requested Nationwide to reduce UIM coverage from 50/100 to 15/30 on Mrs. Resseguie’s policy. As a result of this request, the secretary to Nationwide’s agent wrote out a customer service request form on which was reflected the requested reduction. In response to this form, Nationwide mailed to Mrs. Resseguie a new declarations page reflecting this reduction and advising Mrs. Resseguie that a credit for the reduction had been applied to the premium balance. Mrs. Resseguie continued to pay the premiums reflecting the reduced UIM coverage for four years.

Mr. Resseguie was killed in an automobile accident four years after the UIM reduction which he had orally requested took effect. Because the limit of the tortfeasor’s policy was insufficient to cover damages, Mrs. Resseguie applied for a 50/100 UIM coverage limit under her policy. Nationwide then instituted a declaratory judgment action for a determination of the amount of UIM coverage on the policy.

The court of appeals found that Mrs. Resseguie, as the named insured, never personally requested in writing the reduction of UIM coverage and never authorized her husband to do so. Moreover, Nationwide never obtained a written request from Mrs. Resseguie for UIM reduction. The court of appeals, in affirming this holding of the United States district court, declared:

‘Section 1734 requires the named insured to request in uniting that the limits of her coverage be lowered. Short of a written request by Marian Resseguie for the lower coverage, ... Nationwide simply was not authorized to alter her policy.’

At 231.

[Section] 1734’s language is plain[,] and the Pennsylvania General Assembly’s intention is clear. By its terms, a named insured may lower her statutorily provided UIM coverage limits by requesting in writing of her insurer to do so. The insurance company’s obligation to issue a policy with UIM coverage in an amount equal to the policy’s bodily injury liability coverage is not relieved unless it has received such a written request.
Id. In conclusion, the court of appeals stated:
We therefore reject Nationwide’s argument that ‘the writing necessary to effect Marian Resseguie’s request that her UIM benefits be reduced ... is the February 20, 1985 written Customer Service Request, generated as a result of Richard Resseguie’s verbal instructions to the Nationwide Insurance office.’ We agree with the district court that to accept Nationwide’s argument on the meaning of @ 1734 ‘would defeat the purpose of the MVFRL by creating unintended ambiguities in the law. It is a very simple, clear-cut rule for an insurance company to follow — to lower the limits it must insist on a written authorization signed by the named insured’.

Id., at 232, quoting, in part, Nationwide Insurance Co. v. Resseguie, 782 F.Supp. 292, 294 (M.D.Pa.1992); (all emphases supplied).

The policy change request form at issue here contains a separate section denominated “ADD COVERAGE SAME AS ON POLICY”. Across from this margin heading is the designation “UM/UIM BI”. Underneath this designation is a blank box and two blank lines thus,_I_, with the first line on top and a “slash” and the second line underneath the first. Beside the top line is a box which is to be filled in with an “x” if the customer desires his/her UM/ UIM limits to equal the bodily liability limits of the policy. The blank lines are to be filled in with the amount of UM/UIM coverages which the customer desires if these coverages are to be different from the amount of coverage for bodily injury liability. On the policy change request form in question, the UM/UIM box was “x’ed” and the numbers “15” and “30”, respectively, were written in the blank spaces. The “UM/UIM BI” box was circled and the word “Reduce” was written in the box. Mr. Sommers, appellant’s agent, testified at the hearing held on the declaratory judgment action that it was he who filled out the policy change request form, “x’ed” the “UM/UIM BI” box, filled in the blanks with the numbers “15” and “30”, circled the “UM/UIM BI” box and wrote “Reduce” therein. N.T. 68.

The policy change request form also contains another, separate section. This section is entitled “UM/UIM REJECTION OR REDUCTION” and provides, with regard to the law of this Commonwealth, as follows:

UM/UIM REJECTION OR REDUCTION If an option listed below is requested, the correct block must be checked and the insured must sign in the space provided.
* * * * * *
PA [Blank Box] I request an Uninsured Motorists [sic] coverage limit of $_V$_ to be effective in my policy. [Blank Box] I request an Underinsured Motorists [sic] coverage limit of $_/$_ to be effective in my policy. I understand that the limit(s) requested are lower than the Bodily injury Liability limit afforded by this policy.
sf. * * * * *
Applicant’s Signature-UM/UIM Rejection X-

(Emphasis supplied). This section of appellee’s policy change request form was left blank, i.e., neither of the blank boxes applicable to UM/UIM coverage in this Commonwealth was “checked”, the blanks following the two were not filled in, and, contrary to the instructions of that section, appellant did not affix her signature on the line provided. When asked why this section was not completed for reduction of the UM/UIM coverages, Mr. Sommers testified that it was not necessary, since he had already indicated in a prior section that the UM/UIM coverages were to be reduced and the amounts to which they were to be reduced. He testified, moreover, that he had overlooked the above section and the necessity for appellee’s signature there. N.T. 73.

It is apparent, however, that the two sections of the policy change request form serve different purposes. The instructions under the section “ADD COVERAGE SAME AS ON POLICY” state: “X Box (under each coverage) for same limit as policy or show new limit....” Thus, the blank box beside the blank lines in the “UM/UIM BI” portion of that section is to be “x’ed” only if the customer desires UM/UIM coverages to equal the bodily injury liability coverage of the policy. Otherwise, amounts of UM/UIM coverages are to be filled in on the blank lines if these coverages are to be different from the bodily injury liability coverage of the policy. The purpose of this section is not to request reduction of UM/UIM coverages. It does not contain any language therein indicating that the applicant is requesting a reduction. It also does not contain a signature line, nor is the section designed to provide for one.

The section “UM/UIM REJECTION OR REDUCTION”, however, does contain language indicating a request for reduction of UM/UIM coverages, and the instructions accompanying that section provide that the blank boxes pertaining to each of UM/UIM coverages are to be checked and the amounts for each coverage are to be filled in on the blank spaces. In addition, the instructions require that the applicant sign on the blank signature line provided therein. As noted before, this section was left blank.

We must determine whether appellee’s signature at the end of the policy change request form on which appellant’s agent indicated reduced amounts of UM/UIM coverages or the act of appellant’s agent in filling in the UM/UIM coverages and writing “Reduce” thereon compensated for or is sufficient to fulfill the mandate of a request in writing pursuant to Section 1734. If it is not, we must then decide what effect, if any, non-compliance with Section 1734 has upon application of the conclusive presumption of Section 1791. We conclude that the requirement of a request in writing pursuant to Section 1734 has not been satisfied and that, therefore, the trial court properly refused to apply the conclusive presumption of Section 1791.

It is important to note at this juncture that whether appellee actually requested a reduction in her UM/UIM limits from 50/100 to 15/30 is irrelevant under the circumstances. The trial court, in its Opinion written in support of its Order declaring appellee’s UM/UIM coverages to be 50/100, found as follows in this regard:

While we find it unlikely that [appellee] specifically requested that her UM/UIM benefits remain the same, we are not prepared to find that she specifically requested a reduction in these limits either. While Agent Sommers testified that he discussed the UM/UIM limits with [appellee], he also could not remember any specific questions asked by [appellee]. We will not discredit [appellee’s] uncontradicted testimony that she believed her UM/UIM limits were unchanged when she read the Important Notice and when she left the January 31 meeting.

At pp. 6-7.

If appellee did not request this reduction in writing, then Agent Sommers was without authorization to write into and circle the section of the policy change request form “ADD COVERAGE SAME AS ON POLICY”, discussed supra, reduced amounts of UM/UIM coverages and write the word “Reduce” thereon. In this event, his position is no better than was that of the secretary in Resseguie who filled out the customer service request form. Agent Sommers’ act did not constitute a request in -writing by the insured. Resseguie, supra. Appellee did not even initial this purported change by Mr. Sommers. Similarly, even if appellee had requested reduction of her UM/UIM limits, her waiver is ineffective. The section of the policy change request form “UM/UIM REJECTION OR REDUCTION” was left blank despite the instructions therein that “the correct block must be checked and the insured must sign in the space provided.”

Additionally, the receipt of the “Important Notice” and her signature at the end of the policy change request form do not fulfill the mandate of a request in writing because Section 1791 does not provide a mechanism for requesting UM/UIM coverages. At most, the insured’s signature at the end of an insurance policy application “merely evidences the insureds [sic] acceptance of the policy, [sic] but cannot amount to a statutorily enforceable waiver of uninsured/underinsured motorist coverage limits equal to bodily injury limits.” Nationwide Insurance Co. v. Profit, 10 D. & C. 4th 287, 296 (1991). Hence, no request in writing by appellee appears here.

We have already observed that the two sections on the policy change request form serve different purposes in any event, the former being the appropriate section to complete for requesting reduction of UM/UIM coverages. As no request in writing by appellee to reduce the limits of her UM/UIM coverages is evident, we cannot say that compliance with Section 1734 has occurred here. This being so, we now proceed to the final leg of our analysis to determine what effect, if any, non-compliance with Section 1734 has upon the application of the conclusive presumption of Section 1791.

III.

In determining whether non-compliance with Section 1734 precludes the application of the conclusive presumption of Section 1791, we are guided by several provisions of the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501 et seq. The first provision which we consider is Section 1921. This section provides in pertinent part:

Legislative intent controls
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the
General Assembly----

1 Pa.C.S.A. § 1921(a).

In construing a statute, we are required to effectuate and ascertain the intent of the legislature. Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991); 1 Pa.C.S.A. § 1921(a). The intent of the General Assembly in enacting the MVFRL was to reduce the rising cost of purchasing motor vehicle insurance. Danko v. Erie Insurance Exchange, 428 Pa.Super. 223, 630 A.2d 1219 (1993), aff'd, 538 Pa. 572, 649 A.2d 935 (1994); Lambert, supra. The MVFRL, of which Sections 1734 and 1791 are a part, is to be construed liberally in order to promote justice and to give effect to its objects. Id. 1 Pa.C.S.A. § 1928(c) .(“All other provisions of a statute shall be liberally construed to effect their objects and to promote justice.”). One of the objects of the MVFRL to be effected by this liberal construction is affording the injured claimant the greatest possible coverage. Danko, supra; Sturkie v. Erie Insurance Group, 407 Pa.Super. 117, 595 A.2d 152 (1991); Lambert, supra, at 257, 595 A.2d 629. In close or doubtful cases, we must interpret the intent of the legislature and the language of insurance policies to favor coverage for the insured. Danko, supra, at 223, 630 A.2d 1219; Lambert, supra, at 257, 595 A.2d 629.

In light of the foregoing principles, we make the following observations. First, the purpose of Sections 1734 and 1791 are the same, viz: to reduce the cost of purchasing an automobile insurance policy by offering an insured the opportunity to purchase UM/UIM coverages in amounts lower than his/her bodily injury liability limits. Secondly, both sections also offer the insured the option to purchase UM/UIM coverages in amounts equal to the limits of his/her bodily injury liability coverages. This is in keeping with the mandate that we interpret the MVFRL liberally in order to allow an injured insured the greatest possible coverage allowed by law. Thirdly, by imposing a floor upon the amount of UM/UIM coverages insurers are required to offer in this Commonwealth, both statutes at issue here guarantee minimum UM/UIM coverages to insureds whose damages are greater than the amount of the tortfeasor’s bodily injury liability limits.

Section 1932 of the Statutory Construction Act, 1 Pa.C.S.A. § 1932, is also relevant to our analysis and reads:

Statutes in pari materia
(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
(b) Statutes in pari materia shall be construed together, if possible, as one statute.

Based upon the foregoing analysis, we harbor no doubt that Sections 1734 and 1791 are in pari materia. First, they both relate to insureds who are faced with the decision whether to purchase UM/UIM coverages and, if so, in what amounts. Section 1734 requires an insured to request in writing his/her desire to purchase UM/UIM coverages and also requires the insured to request in writing the amounts he/she desires these coverage limits to be with respect to the amount of the insured’s bodily injury liability limits. Section 1791 places an insured on notice that he/she may purchase, inter alia, UM/ UIM coverages equal to or lower than his/her bodily injury liability limits.

Appellant appears to argue, however, that the “Important Notice” provision of Section 1791 operates as a blanket or catch-all waiver and, coupled with appellee’s signature at the end of the policy request change form, supersedes all other statutory requirements and all other waiver provisions included in an insurance application or change request form. This is so despite the absence of a request in writing pursuant to Section 1734, as evidenced by (1) the the lack of information in the “UM REJECTION OR REDUCTION” section of the policy change request form and the lack of appellee’s signature therein contrary to the instructions of that section and (2) Agent Sommer’s act of filling in the “ADD COVERAGE SAME AS ON POLICY” section with regard to reducing appellee’s UM7UIM coverages, circling the reduced amounts and writing in his own signature “Reduce”, which appellee did not even initial. Were we to adopt appellant’s position, we would run afoul of Section 1922 of the Statutory Construction Act, 1 Pa.C.S.A. § 1922, and, in particular, Section 1922(1), (2) and (5) which provide:

Presumptions in ascertaining Legislative intent
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
* ‡ * * * *
(5) That the General Assembly intends to favor the public interest as against any private interest.

1 Pa.C.S.A. § 1922(1), (2), (5).

Aware that our primary responsibility in the interpretation of the MVFRL is to ascertain the intent of the legislature, Lambert, supra, at 257, 595 A.2d 629, and Section 1921(a), supra, we must examine the relationship between Section 1734 and Section 1791 in light of the presumptions expressed above. Were we to conclude that Section 1791 subsumes or supersedes Section 1734, we would be rendering an interpretation that is absurd and unreasonable in contravention of Section 1922(1). It logically follows that our conclusion in this regard would contravene Section 1922(2) because it would be tantamount to holding that Section 1734 exists as mere surplusage. No legislative presumption exists in favor of surplusage. Rather, each statute enacted is to be definite and certain. See Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982).

Our third reason for not adopting the position urged by appellant is that were we to agree with it, we would be favoring a private interest over a public one contrary to Section 1922(5). Appellant argues, and at the hearing Agent Sommers testified, that he and appellant have nothing to gain by a reduction in appellee’s UM/UIM coverages. Such a reduction, instead, would result in a loss of income for appellant and its agent. While this may be true with respect to the payment of lower premiums by appellee, where, as here, an accident has occurred and the damages suffered by appellee exceed the bodily injury liability limits of the tortfeasor’s automobile policy, lower UM/UIM coverages result in a payout substantially less than that which appellee would receive if her UM/UIM coverages were at least equal to her bodily injury liability limits.

As we noted elsewhere in this Opinion, we are required to construe the provisions of the MVFRL liberally in order to afford appellee the greatest possible coverage. Danko, supra, at 223, 630 A.2d 1219; Sturkie, supra, at 117, 595 A.2d 152; Lambert, supra, at 257, 595 A.2d 629. Appellee, like many other vehicle owner/operator members of the general public, is a consumer of automobile insurance. In keeping with this legislative mandate, we cannot, under the circumstances of this case, ignore the interest of appellee and others like her who purchase automobile insurance policies to protect themselves, their insureds and others whom they may injure in motor vehicle accidents, in favor of the private interests of the insurance industry in this Commonwealth.

Having conducted the foregoing analysis, we are still left to answer the question how Sections 1734 and 1791 interplay so that, in keeping with presumptions of legislative intent, we may give effect to both.

Sections 1734 and 1791 are both provisions of the MVFRL. Section 1734 is part of Subchapter “C” of the MVFRL, and Section 1791 is found in Subchapter “I” thereof. This distinction is important because we are required to heed closely to the subchapters into which the various provisions of the MVFRL are organized. Westbrook v. Robbins, 416 Pa.Super. 543, 611 A.2d 749 (1992). We will not apply a provision in one subchapter to interpret a provision in another subchapter, id., especially when to do so cuts against the grain of legislative intent.

Subchapter “C” is entitled “UNINSURED AND UN-DERINSURED MOTORIST COVERAGE” and is concerned exclusively with UM/UIM coverages, viz: availability, scope and amount of coverage (Section 1731), priority of recovery (Section 1733), request for lower limits of coverage (Section 1734), coverages in excess of required amounts (Section 1736) and stacking of UM/UIM benefits and waiver option (Section 1738). Subchapter “C”, therefore, contains a comprehensive statutory scheme regulating the availability and the offering by insurers of UM/UIM coverages, the amounts which may and must be offered and the acceptance or waiver of UM/UIM coverages by insureds. Section 1734, in particular, provides the manner by which an insured may request UM/UIM coverages and the amounts which an insured may request relative to the limits of liability of his/her bodily injury liability coverage. Section 1734 mandates that the request for UM/UIM coverages and the amounts thereof must be requested by the insured in writing.

Section 1791, on the other hand, is located in Subchapter “I” of the MVFRL. This Subchapter is entitled “MISCELLANEOUS PROVISIONS” and contains a potpourri of provisions, viz: premium charges for extraordinary medical benefits and mandated deductions in premiums for restraint systems, availability of tort options, antitheft devices and driver improvement courses, rates for penalties and point assignments, cancellation rights, refusals to renew, conduct of studies and field surveys by the Department of Insurance, reporting of insurance fraud, mental and physical examinations and charges therefor, attorneys fees, the CAT fund, compulsory judicial arbitration, availability of bodily injury liability and UM/UIM coverages in amounts higher than the statutory minimum, mandatory deductible amounts for collision and comprehensive coverages and notice of available benefits and limits (Section 1791). Subchapter “I” does not appear to relate to any exclusive aspect of insurance coverage.

Section 1791 is titled “Notice of available benefits and limits”. (Emphasis supplied). As its title indicates, it is a notice which insurers who do business in this Commonwealth must provide to their insureds advising the latter of the variety of benefits which the insurers are required to offer to their insureds. See 1 Pa.C.S.A. § 1924 (“The headings prefixed to ... sections ... shall not be considered to control but may be used to aid in the construction thereof.” [Emphasis supplied]). Section 1791(6), in particular, advises insureds of the amounts of UM/UIM coverages which insurers are required to offer their customers. It also informs insureds that insurers may offer higher or lower benefits than those enumerated in the “Important Notice”. It does not require an insured to purchase these coverages. It does not regulate the manner by which application for these coverages is to be made. It operates simply as a notice that (1) certain benefits are available for purchase by an insured and (2) an insured is presumed to know and understand these available coverages, as well as the one(s) which he or she has actually selected. See 1 Pa.C.S.A. § 1924, supra.

However, in order for the conclusive presumption of Section 1791 to be effective, an insured must have actually selected coverage(s), and the selection process must first be in conformity with the law, ie., in this case, with Section 1734.

At the risk of being redundant, but for the sake of clarity, we repeat: Appellee never selected lower UM/UIM coverages because she did not request the same in writing as required by Section 1734. If she did request reduced UM/UIM coverages, her request is ineffective for the same reason. The absence of a written request by appellee pursuant to Section 1734, of course, would preclude her knowledge and understanding of lower UM/UIM coverages for the purpose of Section 1791. She could not be presumed to have knowledge and understanding of that which she never selected in accordance with law. •

The “Important Notice” is merely a notice to appellee that she must be offered certain benefits in certain amounts which she may accept, reject or reduce. Thus, Section 1791 does not provide the means for selection, rejection or reduction of these offered benefits. This, instead, is provided for by the legislature in Subchapter “C”. The “Important Notice” merely informs appellee that she is presumed to know and understand those benefits offered and those benefits which she has selected in conformity with law, i.e., in this case, Section 1734. If appellee has not selected reduced UM/UIM coverages in conformity with Section 1734, she cannot be presumed to have knowledge and understanding of them. If Section 1791 were to serve the same legislative purpose as does Section 1734, the latter would amount to mere surplusage, a result not intended by the legislature. Both provisions must remain definite and certain. See Habecker, supra, at 463, 445 A.2d 1222. Simply stated, the two statutes are found in two different subchapters because each statute serves a different purpose and relates to a different aspect of motor vehicle financial responsibility.

Having said all this, how are we to give effect to both Section 1734 and Section 1791, and how are they reconcilable with each other? The answer is thus: Given the distinct legislative purposes of the two statutes relative to the facts at bar, the conclusive presumption of Section 1791 is not triggered unless and until the statutory mandate of Section 1734 has first been fulfilled. Since the latter event has not occurred here, the conclusive presumption of Section 1791 has no application to these facts.

Order affirmed.

      . The distinction in Resseguie that the request was made by a person who was not a named insured is one without a difference. Assuming, without deciding, that appellee, a named insured, did request the change in her UM/UIM limits at her meeting with Mr. Sommers on January 31, 1991, nevertheless, Section 1734 mandates that the request be made in writing by the insured. Under the circumstances of this case, Agent Sommers had no more authority to request reduction of appellee’s UM/UIM limits than did Mrs. Resseguie’s husband or the agent's secretaiy there who filled out the customer service request form. We note, moreover, that the Resseguie court considered insignificant that Mrs. Resseguie had paid premiums for the lower UM/UIM coverages for a period of four years.

      . We do not conduct this analysis with an eye toward resolving any ambiguity or irreconcilability between the statutes here in question. On the contrary, and as our analysis will conclude, both statutes are clear and free from ambiguity and are reconcilable with each other.

      . The MVFRL falls into that class of legislation which is excluded from the strict construction requirement of Section 1928(b), q.v.

      . We have already rejected appellant’s argument that appellee’s signature at the end of the policy change request form constitutes a request in writing for reduced UM/UIM coverages as contemplated by Section 1734. See pp. 565-566 supra.

      . It appears that appellant has designed an "Important Notice” to accompany an application for a policy change request. This "Important Notice” is identical to that set forth in Section 1791, except for the following language:
      SUPPLEMENTAL APPLICATION/POLICY CHANGE REQUEST FOR FIRST PARTY BENEFITS/EXTRAORDINARY MEDICAL BENEFITS
      Motorists Mutual Insurance Company has provided the ‘Supplemental Application/Policy Change Request For First Party Benefits/Extraordinary Medical Benefits’ form showing all of the First Party Benefit options that we make available for purchase.
      sj« 4; ;'fi * £ 4s
      Your signature on the 'Supplemental Application/Policy Change Request For First Party Benefits/Extraordinary Medical Benefits’ form and the application for insurance coverage will evidence your actual knowledge and understanding of the available benefits and limits as well as the benefits and limits you have requested.
      (Bold emphasis in text; underlined emphasis supplied).
      Neither Section 1791 nor any other section of the MVFRL provide for the furnishing of a copy of the "Important Notice” to an insured when he/she chooses to apply for a subsequent change in his/her current policy. In fact, Section 1791 states that a copy of the "Important Notice” be "given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required." (Emphasis supplied). We note that the statute uses the word "required” rather than "forbidden”. Thus, we believe that appellant is not barred from furnishing its insureds with another copy of the "Important Notice” tailored to fit the event of a policy change request, While we laud its efforts for doing so, we regret to inform appellant that going this extra mile does not save the day for it.

      . See note 4, supra.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    664 A.2d 570
    COMMONWEALTH of Pennsylvania v. Oliver W. EVANS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1995.
    Filed Aug. 23, 1995.

      Robert H. Bascom, Jr., Assistant Public Defender, Harrisburg, for appellant.
    Richard E. Guida, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BECK, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court erred in failing to charge the jury with a “missing witness” adverse inference instruction due to the Commonwealth’s refusal to disclose the identity of a confidential informant who was the only other witness to the alleged crime. We reverse and remand for proceedings not inconsistent with this Opinion.

This appeal involves a challenge to the trial court’s denial of appellant’s oral motion to request a “missing witness” adverse inference instruction made after the trial court charged the jury and in response to the trial court’s request for any additional points for charge. The pertinent facts and procedural history of this case are as follows.

In January, 1990, Pennsylvania State Police Trooper Susan Fritz of the Region 3 Strike Force, a drug law enforcement division of the State Police, began an undercover drug investigation in the Harrisburg area of Dauphin County. (N.T. 10/15/93 at 11). The instant investigation involved the participation of a confidential informant who agreed to go undercover and introduce narcotics suppliers to Trooper Fritz. (Id.) At the time of the agreement, criminal charges were pending against the confidential informant. (Id. at 12). Trooper Fritz testified that when it came time for the confidential informant’s sentencing, she would make the district attorney’s office aware of his cooperation with her. (Id. at 25).

On March 20, 1990, Trooper Fritz and the confidential informant proceeded in the confidential informant’s vehicle to the 500 block of South Second Street in Steelton to the residence of an alleged supplier known to the confidential informant by the nickname “Poodle.” The confidential informant entered the residence located at 534 South Second Street, and returned shortly thereafter with appellant. (Id. at 13). Trooper Fritz got out of the passenger side of the front seat and moved to the back seat while appellant took her place in the front seat. (Id. at 14).

Trooper Fritz asked appellant if he could obtain an eighth of an ounce of cocaine, to which appellant responded that he could, if they could take him into Harrisburg. (Id.) The three proceeded in the confidential informant’s vehicle to the area of Linden Avenue in Harrisburg, where appellant exited the vehicle, made a phone call on a nearby pay phone, then walked behind a building, returning approximately ten minutes later. (Id.) Trooper Fritz asked him if he got the eighth, and appellant responded that he got a sixteenth. (Id. at 15).

Upon returning to Steelton in front of 534 South State Street, appellant handed a package to the confidential informant, who then handed it to Trooper Fritz in the back seat. (Id.) Appellant then said the cocaine would cost $120.00, and the confidential informant paid him the amount with prerecorded U.S. currency given to him by Trooper Fritz prior to their initial arrival in Steelton. (Id. at 16). Appellant exited the vehicle and went into the residence. Trooper Fritz and the confidential informant then left the area. (Id.) Appellant was not immediately arrested.

During the course of her subsequent investigation, Trooper Fritz learned from another trooper that an individual who lives in Steelton and is known as “Poodle” is one Oliver Evans, appellant. Several days after the purchase, Trooper Fritz identified appellant in a photo array as the supplier. (Id. at 27).

Neither the confidential informant nor Trooper Fritz had any further contact with appellant until ten months after the purchase when Trooper Fritz arrested appellant on January 29, 1991. On February 7, 1991, at the preliminary hearing, Trooper Fritz made an in-court identification of appellant as the person who sold the drugs. (Id. at 22).

Appellant was charged with unlawful delivery of a controlled substance. After more than a two-year delay, the jury trial commenced on Friday, October 15, 1993. Trooper Fritz was the sole witness for the prosecution. Both parties rested their cases on that day, and the jury was re-assembled on Monday, October 18, 1993.

On Monday, as the trial court was about to charge the jury, the prosecutor interrupted and the trial court stopped and corrected itself, stating that the parties had not given their closing arguments to the jury. The Commonwealth and the defense then closed to the jury. (N.T. 10/18/93 at 43-44).

The trial court then charged the jury. (Id. at 44-59). At the conclusion of the jury instructions, the trial court informed the jury that it would ask counsel if it had made any misstatements, to which appellant’s counsel responded with an oral motion to have a “missing witness” adverse inference jury instruction read for the failure of the Commonwealth to call the confidential informant. (Id. at 59). Following a brief sidebar discussion, the trial court denied counsel’s request on the basis that he failed to prove the necessity of disclosure of the confidential informant’s testimony and that the request was untimely presented to the court. (Id. at 59-60).

The jury returned a guilty verdict to the charge of unlawful delivery of a controlled substance. Following the denial of post-trial motions, appellant was sentenced to a term of incarceration of thirty-six to seventy-two months, along with a $300.00 fine. Appellant’s bail was subsequently revoked. This timely appeal followed.

On appeal, appellant raises the following issue for our review:

WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT THE APPELLANT’S REQUESTED JURY INSTRUCTION OF FAILURE TO CALL A POTENTIAL WITNESS?

Appellant’s Brief at 4.

Initially, we must determine whether appellant’s request for a “missing witness” adverse inference jury instruction was timely. Appellant claims that the trial court erred by failing to grant his oral request for a “missing witness” adverse inference jury instruction prior to sending the jury out to deliberate. Specifically, appellant contends that the trial court failed to provide counsel with an opportunity to submit requested points for charge. Appellant points to the record, which reveals that on Friday, October 15,1993, counsel rested their cases and the proceedings ended. On the following Monday, the trial court immediately proceeded to begin the jury instructions, was interrupted, then instructed counsel to close to the jury. Thus, appellant concludes that he was not given the opportunity to formally request points for change, and therefore made a timely oral request when the trial court inquired of counsel whether it had made any mistakes.

Requests for jury instructions are governed by Pa.R.Crim.P. 1119, which follows in pertinent part:

(a) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests. The trial judge shall charge the jury after the arguments are completed.

Pa.R.Crim.P. 1119(c).

The trial court concluded that appellant’s jury charge request was untimely and therefore violated this rule because it was submitted after closing arguments.. We disagree.

In interpreting Rule 1119, our courts have reached mixed results as to whether a jury charge request has been timely submitted. Compare Commonwealth v. Howard, 538 Pa. 86, 99, 645 A.2d 1300, 1307 (1994) (charge untimely when submitted after jury sent out); Commonwealth v. Romanelli, 336 Pa.Super. 261, 271, 485 A.2d 795, 800 (1984) affirmed, 522 Pa. 222, 560 A.2d 1384 (1989) (charge untimely when submitted just prior to jury instructions); with Commonwealth v. Gonzales, 334 Pa.Super. 603, 608-09, 483 A.2d 902, 904-05 (1984) (request for charge timely when made in response to trial court inquiry as to other points/exceptions); Commonwealth v. Young, 271 Pa.Super. 59, 64, 412 A.2d 159, 162 (1979) (request for charge timely where written request submitted after closing arguments but before jury retired).

We are of the opinion that our prior decision in Commonwealth v. Gonzales, supra, at 603, 483 A.2d 902 is dispositive of the timeliness issue. In that case, appellant’s counsel responded to an inquiry from the bench as to whether either counsel wished to add a point for charge or take exception. Counsel for appellant made his request, which was denied on the basis of untimeliness under Rule 1119(a).

On appeal, this Court held that a jury instruction is not untimely requested when made in direct response to an inquiry from the trial court judge. Commonwealth v. Gonzales, supra at 609, 483 A.2d at 905. Similarly, here, counsel for appellant responded to the court’s inquiry with a request for a specific point for charge, which was expressly denied on two grounds: on timeliness per Rule 1119(a) and on the merits. Because our decision in Commonwealth v. Gonzales, supra resolves the timeliness issue, we turn our attention to the trial court’s determination that a “missing witness” adverse inference instruction was not warranted on the merits.

Appellant contends that the trial court erred by denying his requested jury instruction because the Commonwealth’s failure to call the confidential informant entitled him to request that the jury be instructed that it could draw an adverse inference from the confidential informant’s absence. Appellant first asserts that despite numerous defense requests and Trooper Fritz’s preliminary hearing testimony that the confidential informant would testify at trial, his/her identity was never disclosed by the Commonwealth. Appellant farther avers that the confidential informant, as an eyewitness, would provide probative and not merely cumulative testimony. Finally, appellant argues that because the confidential informant allegedly had prior dealings with the dealer nicknamed “Poodle,” the delay of ten months between the transaction and arrest would place into question Trooper Fritz’s identification and render the informant’s testimony material and relevant. We agree.

Our Supreme Court has articulated what has come to be known as the “missing witness” adverse inference rule as follows:

When a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not merely be cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference that it would have been unfavorable.

Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d 239, 241 (1983) (quotations, citations and emphasis omitted). However, this Court has summarized the circumstances that preclude issuance of the instruction as follows:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Commonwealth v. Boyd, 356 Pa.Super. 302, 308-09, 514 A.2d 623, 626 (1986) appeal denied, 515 Pa. 618, 531 A.2d 427 (1987) (Johnson, J., concurring) (citing Commonwealth v. Harley, 275 Pa.Super. 407, 413, 418 A.2d 1354, 1357 (1980)).

In order for the “missing witness” adverse inference rule to be invoked against the Commonwealth, the witness must be available only to the Commonwealth and no other exceptions must apply. Commonwealth v. Culmer, 413 Pa.Super. 203, 218, 604 A.2d 1090, 1098 (1992). In order to determine whether a witness was “available” to a party, the trial court must ascertain whether the witness was “peculiarly within the knowledge and reach” of one party. Commonwealth v. Boyd, supra at 307, 514 A.2d at 625 (citing Commonwealth v. Newmiller, 487 Pa. 410, 420, 409 A.2d 834, 839 (1979 (Per O’Brien, J., with two Justices concurring and one Justice concurring by Opinion).

Instantly, during the sidebar conference on appellant’s oral motion for the “missing witness” instruction, the prosecutor argued that the confidential informant was not in the exclusive control of the Commonwealth, and moreover, his/her testimony would merely be cumulative to that of Trooper Fritz. The trial court, which denied appellant’s motion contemporaneous with hearing the prosecutor’s statements later reasoned in its opinion dated December 27, 1994, that the interest in protecting the informant’s safety essentially constituted a satisfactory explanation for not putting the informant on the stand. We cannot agree.

Our review of the record discloses that there is no evidentiary support for the trial court’s conclusion that the confidential informant was available to appellant. There is no proof that appellant knew the informant by name, or where he lived. Contra Commonwealth v. Manigault, supra at 511, 462 A.2d at 241 (where record is devoid of any evidence that witness was available only to Commonwealth, refusal to give missing witness charge not error); Commonwealth v. Culmer, supra at 218-19, 604 A.2d at 1098 (missing witness instruction not warranted where one witness remained unknown to both parties and other witness was made known to appellant); Commonwealth v. Echevarria, 394 Pa.Super. 261, 270-71, 575 A.2d 620, 625 (1990) appeal denied, 527 Pa. 633, 592 A.2d 1301 (1991) (missing witness instruction not warranted where defendant admitted that he knew the informant, whose name was testified to at trial). In fact, the defense requested that Trooper Fritz disclose the informant’s identity at the preliminary hearing, to which Trooper Fritz testified that “there was a question whether he was going to testify or not. He will testify now. He will be available for court.” (N.T. Preliminary Hearing 2/8/91 at 7) (emphasis added). In light of this testimony, when asked on cross-examination whether she was prepared to disclose the identity of the informant at that time, Trooper Fritz responded “No.” (Id. at 8). Additionally, on April 2, 1991, the defense requested the names of all eyewitnesses in a subsequent informal discovery letter to the Commonwealth, which was never answered. It is, therefore, clear that the confidential informant was “peculiarly within the knowledge and reach” of the Commonwealth while at the same time outside that purview vis-a-vis the defense. Merely because a confidential informant has knowledge of a defendant’s nickname and whereabouts does not necessarily compel the conclusion that defendant has any knowledge of or can reach the informant in order to subpoena the informant as a witness.

Additionally, we must reject both the Commonwealth’s argument that the confidential informant’s testimony would be merely cumulative and the trial court’s conclusion that concerns for the informant’s safety constitute a satisfactory explanation for the Commonwealth’s failure to put him/her on the stand. We do so on the basis of the reasoning provided by our Supreme Court’s recent decision in a factually identical case, Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77 (1994).

In Commonwealth v. Payne, supra, an undercover state trooper and a confidential informant approached the appellant. The informant spoke with the appellant; then the informant and the trooper followed the appellant to another location, where the trooper, with the informant as the sole witness to the crime, paid the appellant for cocaine. The appellant was not arrested until a full seven months had passed from the date of the transaction. The trooper had no contact with the appellant in the interim.

At trial, the trooper was the only witness for the prosecution. Subsequent to the trooper’s identification of the appellant as the seller, defense counsel raised the issue of misidentification. Defense counsel then moved to force the prosecution to produce the missing informant/witness in order to test the trooper’s identification.

The trial court, following an evidentiary hearing at which the appellant testified that he had not met the trooper prior to the arrest nor was he present at the scene on the night of the alleged transaction, denied the motion. The trial court explained that the Commonwealth did not intend nor need to call the informant as an eyewitness and that the court was mindful of the incarcerated informant’s safety. Id. at 56, 656 A.2d at 78 (citing trial court opinion at 4 — 5).

On appeal, our Supreme Court discussed in detail the balancing test necessary in “informant as material -witness” cases, and held that “the proper balance between the prosecution and the defense necessarily must tip in favor of disclosure where guilt is based solely on a single observation by the police but testimony from a “ ‘more disinterested source is available.’ ” Id. at 58, 656 A.2d at 79 (quoting Commonwealth v. Carter, supra at 61, 233 A.2d at 288). Further, the court concluded that because the informant was the only other eyewitness to the alleged drug transaction, his/her identity was both relevant to the appellant’s defense of mistaken identity and necessary for a fair trial. Id. Thus, the court opined that “[fundamental requirements of fairness mandate disclosure if the informer is the only material witness besides the single police officer.” Id. Finally, the court noted that the appellant’s defense of mistaken identity and his suggestion that another eyewitness might offer evidence to support his claim was bolstered by the lapse of time between the transaction and the arrest, which “allows for the possibility that the officer’s memory of the transaction was mistaken.” Id. at 60, 656 A.2d at 80. In vacating the appellant’s sentence, our Supreme Court ultimately held that the informant/witness’ identity must be revealed or the prosecution dropped. Id. at 54, 656 A.2d at 77.

Although this Court recently concluded that the informant’s safety constitutes a satisfactory explanation for the Commonwealth’s failure to produce him/her, thereby precluding a “missing witness” instruction, see Commonwealth v. Jones, supra, at 97, 637 A.2d at 1001 that conclusion was based on a determination that the Commonwealth established a genuine concern for the personal safety and protection of the informant. Id. at 105, 637 A.2d at 1005. Here, however, the record discloses no showing made to that effect by the Commonwealth. Indeed, it appears that the trial court made this determination sua, sponte. The circumstances themselves, following Commonwealth v. Payne, supra, at 540 Pa. 54, 656 A.2d 77, demonstrate that the confidential informant’s testimony would be material, particularly given the defense’s consistent attack on Trooper Fritz’s identification of appellant.

We are cognizant that appellant’s counsel never filed a written motion for disclosure of the informant’s identity under Pa.R.Crim.P. 305(B). However, the record reveals that Trooper Fritz affirmatively testified that the confidential informant would testify at trial. Therefore, appellant’s counsel had no need to subpoena the confidential informant, because appellant’s defense was misidentification, and the confidential informant, as the only other eyewitness besides Trooper Fritz, would either confirm or dispute the identification. See Commonwealth v. Payne, supra at 56, 656 A.2d at 78.

Additionally, both the Commonwealth and the trial court suggest that a formal Rule 305(B) motion to disclose a witness’ identity is a prerequisite to a request for a “missing witness” instruction. We have found absolutely no case law that supports this proposition. Moreover, the fact that the appellant in Commonwealth v. Payne, supra may or may not have filed a formal discovery motion to disclose the informant’s identity did not preclude the trial court from entertaining the appellant’s motion filed in open court during trial. Similarly, here, although several informal requests for disclosure of the informant’s identity were made by appellant’s counsel, to which the Commonwealth responded negatively or not at all, these circumstances do not preclude an appellant from requesting the “missing witness” instruction, and upon the proper opportunity for the Commonwealth to challenge, have the court rule on the motion.

Based on the foregoing, we conclude that appellant timely and properly moved for a “missing witness” adverse inference instruction. Further, we hold that the trial court erred in denying the request, as the record does not support either a determination that the informant was available to the defense or that his/her testimony would have been merely cumulative of Trooper Fritz’s testimony. Finally, we hold that the trial court erred by sua sponte concluding that the informant’s safety constituted a satisfactory explanation for his/her absence where no such showing was even proffered by the Commonwealth.

Accordingly, we reverse judgment of sentence and remand to the trial court for proceedings not inconsistent with this opinion.

Judgment of sentence reversed.

      . 35 P.S. § 780-113(a)(30).

      . We believe the Commonwealth and the trial court have misstated the proper standard for determining whether a witness was “available” to one or both parties to a trial. The phrase "in control” or "in exclusive control” appears to have been used as synonymous with "peculiarly within the knowledge and reach" of a party. See e.g. Commonwealth v. Jones, 432 Pa.Super. 97, 105, 637 A.2d 1001, 1005 (1994) (en banc); Commonwealth v. Delligatti, 371 Pa.Super. 315, 326, 538 A.2d 34, 40 (1988), appeal denied, 520 Pa. 595, 552 A.2d 250 (1988). However, the standard for determining whether a witness is unavailable is not as strict as requiring him to be under the authority of a party, as the "control” concept suggests. Rather, our Supreme Court in Bentivoglio v. Ralston, 447 Pa. 24, 29, 288 A.2d 745, 748 (1972) applied the "peculiarly within the knowledge and reach” criteria, which plainly does not rise to the level of "control,” but correctly requires factual application. This standard has consistently been followed by the Supreme Court in criminal cases, and albeit inconsistently, by this Court. See Commonwealth v. Newmiller, supra at 420, 409 A.2d at 839; Commonwealth v. Boyd, supra at 307, 514 A.2d at 625; Commonwealth v. Bird, 240 Pa.Super. 587, 591, 361 A.2d 737, 739 (1976).

      . This Court in an unpublished memorandum opinion, affirmed on the basis of Commonwealth v. Mickens, 409 Pa.Super. 266, 274, 597 A.2d 1196, 1200 (1991), and stated that although "the informant's status as the only other eyewitness ... militate[s] in favor of the disclosure of his identity,” balanced against the security of the informant, this Court would not disturb the trial court’s factual determination that the informant’s safety would be jeopardized. (No. 1921 Pittsburgh 1991, Slip op. at 5-6).

      . During the sidebar discussion on appellant's motion, the prosecutor made several arguments against the issuance of the missing witness instruction, none of which related to protecting the safety of the informant. The prosecution argued that the request was untimely; that a motion for disclosure was a prerequisite; that the informant was not in the Commonwealth’s control; and that the informant’s testimony would be merely cumulative to that of Trooper Fritz. (N.T. 10/18/93 at 60).

      . We recognize that upon remand, appellant’s counsel will likely file a formal motion to disclose the identity of the confidential informant, and according to our Supreme Court’s holding in Commonwealth v. Payne, supra, under these circumstances, the informant’s identity must be revealed or the prosecution dropped. We do however, share the concerns expressed by Justice Castille in his cogent concurring opinion that such a remedy may be unfairly punitive in nature, and reward an appellant with "what amounts to a directed verdict (not guilty in this case) where a material witness uniquely available to one party is not presented.” Commonwealth v. Payne, supra at 63-64, 656 A.2d at 81-82 (Castille, Justice, concurring). Rather, the proper resolution would appear to be through a "missing witness” instruction request, and then to permit the court to properly balance the countervailing interests of each party. Nonetheless, because we see no legally relevant distinction between Commonwealth v. Payne, supra and the instant case, we are obliged to follow its holding. See Commonwealth v. Warrick, 415 Pa.Super. 385, 392 n. 4, 609 A.2d 576, 580 n. 4 (1992) (as an intermediate appellate court, Superior Court is bound by decisions of Pennsylvania Supreme Court, absent a legally relevant distinction).


author: POPOVICH, Judge:

text:
    664 A.2d 577
    Vicki FEWELL, Appellant, v. Lance BESNER, M.D., and Saint Vincent Health Center, Appellees.
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Filed Aug. 24, 1995.

      Michelle H. Kelly, Erie, for appellant.
    Ray F. Middleman, Pittsburgh, for Lance Besner, M.D., appellee.
    T. Warren Jones, Erie, for Saint Vincent Health Center, appellee.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

Vicki Fewell appeals from an order entered in the Court of Common Pleas of Erie County granting appellees’ (Lance Besner, M.D. and St. Vincent Health Center) preliminary objections in the nature of a demurrer. Appellant now claims that the lower court erred in dismissing her complaint because: (1) appellees are not entitled to immunity pursuant to the Child Protective Services Law (“CPSL”) as the immunity provision conflicts with the confidentiality provisions of the Mental Health Procedures Act (“MHPA”) and with the psychotherapist-patient privilege; (2) immunity from suit should be raised as an affirmative defense not by preliminary objection and; (3) a question existed as to whether she suffered the physical injuries necessary to support a cause of action for infliction of emotional distress. After careful review, we affirm.

Appellant Vicki Fewell brought this lawsuit as a result of appellee, Dr. Lance Besner’s, disclosure of confidential information to the Erie County Coroner and testimony that he gave at appellant’s criminal trial. The events leading up to the disclosure of this information began with the suffocation death of appellant’s four month old son on December 11, 1990. An initial police investigation of the incident by the Pennsylvania State Police and the Coroner’s Office found that the death was accidental.

Subsequent to her son’s death, appellant was plagued with severe bouts of depression, resulting in suicide attempts on several occasions. Hospitalization was required to treat these bouts of depression and, ultimately, on January 12, 1992, after appellant sought voluntary treatment, appellee Dr. Besner had her involuntarily committed pursuant to the MHPA. During this period of involuntary commitment, appellant revealed to Dr. Besner that her son’s death was not accidental, but occurred when she suffocated the child to cease his crying. Dr. Besner conveyed this information to the Erie County Coroner resulting in the investigation being reopened and appellant being charged with criminal homicide.

Appellant then filed this lawsuit claiming that she was entitled to damages from appellees because their actions had caused her emotional distress. Dr. Besner and St. Vincent Medical Center filed preliminary objections in the nature of a demurrer. The lower court granted appellees’ preliminary objections finding that appellees were immune from liability and that appellant did not state a cause of action for infliction of emotional distress. Appellant brought this timely appeal which raises several challenges to the propriety of the demurrer.

Before addressing these challenges, we note our standard of review:

When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.

Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969 (1993) (citations omitted).

Appellant first alleges that appellees were not entitled to immunity pursuant to the CPSL because the immunity provisions conflict with the psychotherapist-patient privilege and the confidentiality provisions of the MHPA. We disagree.

Certain persons are required to report suspected child abuse pursuant to the CPSL:

Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made ... when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child. Except with respect to confidential communications made to an ordained member of the clergy ... the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.

23 Pa.C.S.A. § 6311(a).

The immunity provision of the CPSL specifically provides: A person, hospital, institution, school, facility, agency or agency employee that participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse, ... and any official or employee of a county agency who refers a report of suspected abuse to law enforcement authorities or provides services under this chapter shall have immunity from civil and criminal liability that might otherwise result by reason of those actions.

23 Pa.C.S.A. § 6318(a).

There is a presumption that a person making a report of suspected child abuse acted in good faith. 23 Pa.C.S.A. § 6318(b).

Here, neither Dr. Besner nor St. Vincent Health Center were required to report incidents of suspected child abuse pursuant to § 6311(a) of the CPSL. The plain language of this section makes it clear that only those who come into contact with abused children are required to report incidents of abuse. However, appellees are entitled to immunity pursuant to the good faith provisions of § 6318. Appellees’ good faith is evident from a reading of Fewell’s complaint wherein she admitted that she “confided to Dr. Besner that she had intentionally suffocated her infant son.” (Complaint ¶ 14). Dr. Besner’s reporting of the real circumstances surrounding the death of Fewell’s son was done in response to Fewell’s admission to him, and is uncontradicted evidence of good faith. Also, appellant has not alleged that appellees lacked good faith in reporting the information. Thus, the lower court correctly concluded that appellees were entitled to immunity from civil liability. Cf. Heinrich v. Conemaugh Valley Hospital, 436 Pa.Super. 465, 648 A.2d 53 (1994) (holding that hospital and its agents were entitled to immunity under § 6318 of the CPSL because plaintiffs failed to overcome the presumption that the defendant’s acted in good faith).

However, appellant argues that the above stated immunity provision in the CPSL conflicts with the psychotherapist-patient privilege and the confidentiality provisions of the MHPA. The psychotherapist-patient privilege provides:

No psychiatrist or person who has been licensed ... to practice psychology shall be, without the written consent of his client examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S.A. § 5944.

The confidentiality provision of the MHPA specifies:

All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110 (footnote omitted);
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent ...

50 Pa.S.A. § 7111.

Here, we do not find a conflict between these confidentiality provisions and the immunity provision in the CPSL when we examine the decisions of courts in other jurisdictions faced with analogous issues. These courts have concluded that similar immunity provisions in their child protection laws prevail over privileged communication laws. For example, in Gross v. Myers, 229 Mont. 509, 748 P.2d 459 (1987), the plaintiff, Mrs. Gross, related to her therapy group that her husband had sexually abused her daughters approximately sixteen years earlier. Id. at 459. Mrs. Gross was under the impression that all matters raised in the group would be held in confidence. Id. However, the group therapist, Ms. Myers, reported the incidents to state authorities after Mrs. Gross refused to report the incidents. Id. No further investigation was made of the incident because of the remoteness of the incident. Id. Mrs. Gross then filed a lawsuit against Ms. Myers for intentional infliction of emotional distress and various other causes of action. Id. Ms. Myers’ motion for summary judgment was granted on the basis that she was immune from liability pursuant to the reporting provisions of Montana’s child protection statute. Id. at 459-460. The Supreme Court of Montana held that summary judgment was properly entered by the lower court. Id. at 462.

The court analyzed the reporting and immunity provisions of the child abuse statute and found that Ms. Myers, as a licensed social worker, was required to report incidents of suspected abuse. Id. at 460. The court stated that simply because the abuse had occurred several years earlier did not excuse Ms. Myers from the reporting requirements because the possibility existed that Mr. Gross would abuse his grandchildren. Id. at 461. Thus, summary judgment had been properly entered. Id. at 462.

Here, we are faced with a similar situation. Even though Dr. Besner was not subject to the MPSL’s reporting requirements, he informed the Coroner of the circumstances surrounding the death of appellant’s infant son and acted in good faith in so doing. Appellant also had another child at home who could have been the victim of abuse. Moreover, appellant does not allege that Dr. Besner lacked good faith in making the report. Clearly, Dr. Besner’s interest was to carry out his duties under the CPSL and prevent any further abuse. The express purpose of the CPSL would have been breached if Dr. Besner had not reported the incident. See, 23 Pa.C.S.A. § 6302(b); In the Interest of J.R.W., 428 Pa.Super. 597, 631 A.2d 1019 (1993) (stating that the express purpose of the CPSL is to prevent further abuse of children through the use of quick and effective reporting of suspected abuse). Thus, the psychotherapist-patient privilege and the confidentiality provisions of the MHPA must yield to the immunity provision of the CPSL. Cf., People v. John B., 192 Cal.App.3d 1073, 237 Cal.Rptr. 659 (1987) (holding that psychotherapist-patient privilege is not absolute and must yield to the reporting requirements outlined in California’s Child Abuse Reporting Act); State ex rel. DM. v. Hoester, — Mo.-, 681 S.W.2d 449 (1984) (holding that child abuse reporting statute vitiated physician-patient privilege and psychiatrist could be compelled to reveal alleged sexual abuser’s medical records in a civil action for damages); People v. Gearhart, 148 Misc.2d 249, 560 N.Y.S.2d 247 (1990) (holding that the overriding purpose of child abuse reporting statutes is to protect children and the physician-patient privilege cannot be asserted when there is a conflict with child abuse reporting requirements).

Next, appellant contends that the lower court erred in holding that she failed to state a cause of action upon which relief could be granted for infliction of emotional distress. We can summarily dismiss the claim for negligent infliction of emotional distress in light of our holding in Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 633 A.2d 605 (1993), allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994), in which we held that a plaintiff must demonstrate some type of physical injury in order to sustain a cause of action for negligent infliction of emotional distress. Here, appellant merely claims that her incarceration is a “physical impact.” We can find no support for this unsubstantiated assertion of physical injury and appellant acknowledges that this may not constitute physical injury.

Appellant also does not state a cause of action for intentional infliction of emotional distress. The requirements of this tort are enumerated in § 46 of the RESTATEMENT (SECOND) OF TORTS. The status of this cause of action is unclear in Pennsylvania as some appellate courts have adopted RESTATEMENT § 46, but our supreme court has not. See, Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668 (1993). However, our supreme court has acknowledged RESTATEMENT § 46. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). We make no pronouncement as to whether RESTATEMENT § 46 is being adopted by this court because appellant does not state a cause of action for intentional infliction of emotional distress.

Section 46 of the RESTATEMENT specifically provides: (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

RESTATEMENT (SECOND) OF TORTS § 46(1).

A plaintiff must also show physical injury or harm in order to sustain a cause of action for intentional infliction of emotional distress. Kazatsky, supra at 995.

Here, appellant alleges no physical harm, nor does she allege that appellees’ actions were extreme or outrageous. She simply states that she suffered severe emotional distress. In light of the aforestated, the trial court correctly found that appellee failed to state a cause of action upon which relief could be granted for either negligent infliction of emotional distress or intentional infliction of emotional distress.

Finally, appellant contends that it was improper for the lower court to grant appellees’ demurrer because the issue of statutory immunity should have been raised as an affirmative defense not as a preliminary objection. We disagree.

The affirmative defense of “immunity from suit” must be raised in a responsive pleading under the heading of “New Matter”. Pa.R.C.P. No. 1030, 42 Pa.C.S.A. Where a party improperly raises “immunity from suit” in preliminary objections and the opposing party does not object to this defect, then the question of immunity from suit may be decided by the court. Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83, 90-91 n. 4, 597 A.2d 671, 675 n. 4 (1991) .(citations omitted). Here, appellees improperly raised immunity from suit by preliminary objection. However, appellant did not object to this defect and the trial court properly granted appellees’ demurrer, even though it was raised via preliminary objection. Thus, the trial court did not err ruling on appellees’ preliminary objections.

Order affirmed.

      . 23 Pa.C.S.A. § 6311 et seq.

      . 50 P.S. § 7111 et seq.

      . 42 Pa.C.S.A. § 5944.

      . The MHPA establishes procedures for involuntary treatment and hospitalization of mentally ill persons. 50 Pa.S.A. §§ 7103-7503.

      . Appellant filed no responsive preliminary objections to appellees’ preliminary objections.

      . The CPSL also specifies which persons are required to report incidents of suspected abuse:
      Persons required to report ... include but are not limited to, any licensed physician, osteopath, medical examiner, coroner, ... hospital personnel engaged in the admission, examination, care or treatment of persons [or] ... mental health professional.
      23 Pa.C.S.A. § 6311(b).
      Hospitals are encompassed within this section as well. See, Heinrich v. Conemaugh Valley Memorial Hospital, 436 Pa.Super. 465, 648 A.2d 53 (1994).

      . We note that a panel of this Court ruled in the companion criminal case, Commonwealth v. Fewell, 439 Pa.Super. 541, 654 A.2d 1109 (1995), that Dr. Besner breached the psychotherapist-patient privilege by revealing Appellant’s confidential communication that she intentionally suffocated her infant son. Id. at 1115. Accordingly, we held “that the trial court erred by allowing Dr. Besner to testify on behalf of the Commonwealth and disclose the confidential information he obtained during the course of Appellant’s psychiatric treatment.” Id. Under the circumstances, however, we ruled that such error was harmless since Dr. Besner’s testimony was cumulative of other, untainted evidence presented by the Commonwealth. Id. at 1117.
      In the criminal appeal neither party raised the issue presented by Appellant in the present case as to whether the immunity provisions of the CPSL conflict with the confidentiality provisions of the MHPA or the psychotherapist-patient privilege. Therefore, in the companion criminal case this Court was not required to harmonize the CPSL with the MHPA and psychotherapist-patient privilege.

      . Appellant does not specify whether her claim is for intentional infliction of emotion distress or negligent infliction of emotional distress. However, this does not affect our disposition of this issue.