text:
    592 A.2d 698
    Beverly STRAIN and Bernard Strain, Husband and Wife, Appellants, v. Joseph S. FERRONI, M.D., and Daniel C. Harrer, M.D., Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 6, 1991.
    Filed June 7, 1991.

      Nancy H. Fullam, Philadelphia, for appellants.
    Dorothy Duffy, Plymouth Meeting, for appellee Ferroni.
    Joan S. Adams, Philadelphia, for appellee Harrer.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is a consolidated appeal from two orders entered in the Court of Common Pleas of Philadelphia County granting summary judgment in favor of Daniel C. Harrer, M.D. and Joseph S. Ferroni, M.D. We affirm.

The instant appeal is a result of litigation instituted by the appellants Beverly and Bernard Strain against Dr. Harrer for negligence in failing to take actions to prevent Beverly Strain’s miscarriage. See Appellants’ Complaint. After discovery, Dr. Harrer moved for summary judgment arguing that there existed no genuine issues of material fact relative to the Strains’ negligence claim. Additionally, Dr. Harrer contested the Strains’ allegations that his conduct intentionally or negligently caused them emotional distress. The trial court found in favor of Dr. Harrer and entered summary judgment on June 25, 1990.

Similarly, the Strains filed a complaint against Dr. Ferroni, Beverly Strains’ obstetrician-gynocologist, asserting that he was vicariously liable for the acts of his covering physician, Dr. Harrer. The Strains seek to hold Dr. Ferroni accountable for Dr. Harrer’s actions based on the theory of agency. Dr. Ferroni filed a motion for summary judgment which was granted on August 17, 1990. The Strains’ appeals from both orders of the trial court were consolidated and certified to this Court.

The record indicates that Beverly Strain, a patient of Dr. Ferroni, awoke with severe back pain and cramping on the morning of May 5, 1985. At the time, she was in her fourth month of pregnancy. Dr. Ferroni was not available that day, and Mrs. Strain’s call was received by Dr. Harrer who was providing coverage for Dr. Ferroni. Dr. Harrer advised Mrs. Strain to maintain strict bed rest and to call him again if her symptoms changed. Mrs. Strain began to pass small blood clots. She called Dr. Harrer who returned her call within ten to twenty minutes. He again told her to maintain strict bed rest.

Mrs. Strain stated that over the course of the day, a series of phone calls ensued during which she attempted to arrange for the doctor to see her. She felt that he should have performed a physical examination and attempted to save the pregnancy.

Later that evening, the bleeding increased and Mrs. Strain experienced abdominal pain and cramps. Dr. Harrer told her that a miscarriage had begun. Mrs. Strain called an ambulance and went to Roxborough Memorial Hospital. Dr. Harrer called Mrs. Strain to check her status and was informed by Mr. Strain that they were on their way to the Roxborough hospital.

Mrs. Strain was diagnosed as having experienced post-spontaneous miscarriage. The treating physician performed a dilation and evacuation. Mrs. Strain was released the following day.

On appeal, the Strains contend that Dr. Harrer negligently failed to render the appropriate standard of medical care under the circumstances. They also allege intentional and negligent infliction of emotional distress. In particular, they assert that Dr. Harrer misdiagnosed her condition and refused to provide treatment. They allege that Mrs. Strain suffered damages in the form of “increased blood loss, passage of clots, loss of consciousness, physical collapse, emergency surgery, anemia and generalized lethargy.” Appellants’ brief, October 23, 1990, at 5. Regarding the issues of emotional distress, the Strains contend that the “callous indifference shown by Dr. Harrer in the face of the known risk of death from hemorrhage was in reckless [disregard] to the rights and safety” of Beverly Strain. Id. at 5-6.

The Strains also suggest that Dr. Harrer’s alleged negligence should have been imputed to Dr. Ferroni because Dr. Harrer was an agent of Dr. Ferroni. They believe that the trial court erred in finding in favor of Dr. Ferroni, asserting that “[t]he basis for imposing liability upon Dr. Ferroni was his principal-agent relationship with Dr. Harrer whom he retained to provide coverage through his service in his absence.” Appellants’ brief, January 15, 1991, at 6.

While this Court is sympathetic to Mrs. Strain’s situation, we cannot conclude that she has sustained her burden of proving a prima facie case for any of the causes of action set forth in her complaint. Our reasoning follows.

At the onset, we note our scope and standard of review in considering an appeal from the grant of a motion for summary judgment. In Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990), this Court stated:

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id,., 398 Pa.Superior Ct. at 601, 581 A.2d at 626. See also Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 461, 577 A.2d 631, 634 (1990); Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986). Any party may move for summary judgment after the pleadings are closed. Pa.R.Civ.P. 1035. We note, however, that although we must examine the record in the light most favorable to the non-moving party, “the non-moving party may not rest upon the mere allegations and denials of his pleadings. To avoid summary judgment, the non-moving party must set forth specific facts by way of affidavit, or as otherwise provided in [Pa.R.Civ.P.] 1035, demonstrating that a genuine factual issue exists.” Curran v. Children’s Service Center of Wyoming County, Inc., 396 Pa.Super. 29, 30, 578 A.2d 8, 9 (1990). See also Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa.Super. 54, 521 A.2d 469 (1987). With these standards in mind, we will review the Strains’ appellate issues.

The Strains contend that Dr. Harrer committed medical malpractice by misdiagnosing Mrs. Strain’s condition and by improperly treating her. See Appellants’ Complaint. To prove a prima facie case, it was incumbent upon the Strains to produce expert testimony to establish the recognized standard of medical care attributable to physicians under like circumstances. Tarter v. Linn, 396 Pa.Super. 155, 578 A.2d 453 (1990); Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). In Chandler v. Cook, 438 Pa. 447, 451, 265 A.2d 794, 796 (1970), the Pennsylvania Supreme Court expressly held: “... in malpractice cases ... a jury will not be permitted to find negligence without expert testimony to establish variance from accepted medical practice.” Thus, as well, it must be shown that the doctor whose conduct is being challenged departed from the requisite standard when s/he treated the patient. Tarter v. Linn, supra; Freed v. Priore, 247 Pa.Super. 418, 372 A.2d 895 (1977). See also Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986).

The Strains employed only one expert, Dr. Kenneth Kappy. In pertinent part, Dr. Kappy’s report provides:

The patient’s questions revolve around the management of the spontaneous miscarriage in 1985. I do not believe that the earlier admission of this patient would have markedly changed the medical outcome. However, a comment should be made regarding the statements that are made in the deposition of Ms. Strain. I specifically make reference to the events that she says occurred on the day of her admission. Apparently there were a number of phone calls placed back and forth between Dr. Harrer and the patient. She states that she had excessive bleeding with a passage of clots vaginally, along with increasing amounts of cramping. I believe that appropriate medical management would have suggested an examination of Ms. Strain during that time, since cramping and excessive bleeding would be signs of an impending miscarriage, which would require the removal of the products of conception to minimize the potential morbidity that is associated with miscarriage, namely excessive blood loss. This would not alter the final outcome of pregnancy, but it would have diminished the amount of anxiety experienced by Ms. Strain and would have allowed earlier recognition and treatment of her medical problem. Concerning the surgical findings at the repeat cesarean section in July of 1986, the operative report gives no evidence of abnormal findings. [____] The finding of a thin uterine segment after a cesarean section is not unusual despite the fact that it is not very common. I do not believe that it represents any indication of inappropriate medical management.

Expert report, May 12, 198[ ], at 1-2 (emphasis added). Dr. Kappy established that Mrs. Strain’s miscarriage could not have been avoided. His expert report contains no opinion as to whether Dr. Harrer breached the requisite standard of medical care. At best, the report indicates that Dr. Harrer could have acted more promptly; however, there is no evidence that Dr. Harrer’s conduct caused the termination of Mrs. Strain’s pregnancy. See Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978) (“[t]he defendant’s negligent conduct may not ... be found to be a substantial cause where the plaintiff’s injury would have been sustained even in the absence of the actor’s negligence.”); Lambert v. Soltis, 422 Pa. 304, 221 A.2d 173 (1966) (negligence can not be inferred merely because the patient’s treatment was unsuccessful). See Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981) (there must be a causal link between the alleged negligence and the alleged harm); Henry v. McCrudden, 133 Pa.Commw. 231, 575 A.2d 666 (1990) (accord).

Similarly, a review of the record reveals that Dr. Harrer told Mrs. Strain that she might suffer a miscarriage. N.T., Deposition of Beverly Strain, March 18, 1987, at 117. Dr. Ferroni testified that he was confident in Dr. Harrer’s abilities (N.T., Deposition of Dr. Ferroni, December 3, 1987, at 82) and that he “may have apologized [to Mrs. Strain] and told her that [he] was sorry she had a miscarriage, which [he] often [did], but not for Dr. Harrer’s care.” Id. at 96.

Dr. Posatko, the physician who treated Mrs. Strain at Roxborough Memorial Hospital, stated at his deposition that there was no medicine available that would have stopped the miscarriage. N.T., Deposition of Dr. Posatko, at 50. The record is devoid of any evidence to the contrary.

Most interestingly, in the Strains’ Answer in Opposition to Dr. Harrer’s Motion for Summary Judgment, the Strains “concede that the expert report of Dr. Kenneth Kappy does not offer an opinion to a reasonable degree of medical certainty, as is required by Pennsylvania law to present a prima facie case of medical negligence, regarding the issue whether Dr. Harrer’s medical negligence caused or contributed to the loss of this pregnancy. Accordingly, that claim can not and will not be pursued by plaintiffs at trial.” Id. at para. 6. See also id. at paras. 8, 9. Cf. id. at para. 13. See also Strains’ Memorandum of Law in Opposition to Dr. Harrer’s Motion for Summary Judgment, at 2.

It is clear that Mrs. Strain suffered injury as a result of her miscarriage. However, we cannot discern from the record any injury that occurred or that was causally attributable to the allegedly negligent conduct of Dr. Harrer. Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988); see Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

In sum, this Court finds no genuine issue of material fact to be resolved regarding this claim. Conversely, the Strains have failed to satisfy their burdens of proof. The expert opinion rendered by Dr. Kappy does not establish that Dr. Harrer was negligent. Dr. Kappy does not suggest that Dr. Harrer deviated from a requisite standard of care. See Brophy v. Brizuela, 358 Pa.Super. 400, 405, 517 A.2d 1293, 1296 (1986). To the contrary, Dr. Kappy’s review of the facts and history of this case led him to opine that Dr. Harrer’s conduct did not culminate in Mrs. Strain’s miscarriage. Mrs. Strain’s loss was unpreventable. For these reasons, we must affirm the trial court’s grant of Dr. Harrer’s motion for summary judgment on this point.

Beverly Strain lost a great deal of blood as a result of her miscarriage. Cf N.T., Deposition of Dr. Posatko, at 18, 40. She attributes the blood loss, the passage of clots, her physical collapse and general lethargy following the incident, her anemic condition and her emotional injury to the “outrageous conduct” of Dr. Harrer. She states that she risked hemorrhage and death due to Dr. Harrer’s behavior. The Strains seek to reverse the trial court’s determination that there was no issue of material fact regarding the Strains’ claim for negligent infliction of emotional distress.

The law in this area is established. Damages for negligent infliction of emotional distress will not be awarded absent a physical manifestation of the emotional distress. Wall by Lalli v. Fisher, 388 Pa.Super. 305, 565 A.2d 498 (1989); Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986). See Restatement (Second) of Torts, § 436A. See Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 128, 437 A.2d 1236, 1239 (1981) (discussing Restatement (Second) of Torts § 436A). Here, there is no evidence that Mrs. Strain experienced physical injury attendant to her distress. Even viewing the record in the light most favorable to Mrs. Strain, there is no testimony to the effect that any bodily impairment sustained by Mrs. Strain could be associated with the psychological pain inflicted upon her by Dr. Harrer.

The Strains demand recovery for intentional infliction of emotional distress as well. While we do not dispute that Dr. Harrer’s language may have been harsh and/or insensitive and while we recognize the Strains’ complaint that Dr. Harrer should have been more attentive to her situation, we nevertheless must reject the Strains’ claim regarding this issue. As Dr. Harrer correctly notes, although this Court has discussed the theory behind the cause of action for intentional infliction of emotional distress, the Restatement (Second) of Torts § 46 definition has never been expressly adopted in this Commonwealth. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). Baker v. Morjon, Inc., 393 Pa.Super. 409, 574 A.2d 676 (1990). See Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988).

In Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988), this Court reiterated the standard identified in Kazatsky, supra, necessary to establish a cause of action for intentional infliction of emotional distress. Kazatsky “require[d] allegations of an emotional injury due to a tortfeasor’s ‘outrageous’ conduct.” Ford v. Isdaner, supra, 374 Pa.Superior Ct. at 45, 542 A.2d at 139. Our courts have consistently held that in order to sustain a claim for emotional distress of this ilk, the critical inquiry is whether the conduct at issue was extreme and outrageous. In Kazatsky, supra, our supreme court further explained:

It is basic to tort law that an injury is an element to be proven. Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s ‘outrageousness’ without expert medical confirmation that the plaintiff actually suffered the claimed distress. Moreover, the requirement of some objective proof of severe emotional distress will not present an unsurmountable [sic] obstacle to recovery. Those truly damaged should have little difficulty in procuring reliable testimony as to the nature and extent of their injuries. We therefore conclude that if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.

Id., 515 Pa. at 197, 527 A.2d at 995.

After a review of the record, we are convinced that the trial court properly entered summary judgment in favor of Dr. Harrer relative to this issue. At the very most, we cannot find that any of the above elements were satisfied under the facts of this case. See also Dr. Harrer’s brief, at 16-18. More basically however, we must agree with Dr. Harrer that Pennsylvania case law indicates that a claim will not be cognizable under Section 46 of the Restatement of Torts where the negligence of a party forms the basis of a claim. Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa.Super. 54, 59, 521 A.2d 469, 471 (1987). We find no error in the trial court’s grant of summary judgment in favor of Dr. Harrer.

As for Dr. Ferroni, there is no evidence in the record which would allow us to conclude that Dr. Harrer was his agent. A principal may be held vicariously responsible for the acts of his agent where the principal controls the manner of performance and the result of the agent’s work. Moon Area School District v. Garzony, 522 Pa. 178, 560 A.2d 1361 (1989); see id. at 189 n. 8, 560 A.2d at 1367 n. 8. See George v. Nemeth, 426 Pa. 551, 233 A.2d 231 (1967). See Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255, 259-60 (1959) (distinguishes the right to control from the right to supervise). In Yorston, supra, the Pennsylvania Supreme Court wrote:

Physicians and surgeons, like other persons, are subject to the law of agency and a physician may be at the same time the agent both of another physician and of a hospital even though the employment is not joint. [Citation omitted.] In determining whether a person is the servant of another it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it but that this work is to be performed on the business of the master or for his benefit. [Citation omitted.] Actual control, of course, is not essential. It is the right to control which is determinative. On the other hand, the right to supervise, even as to the work and the manner of performance, is not sufficient; otherwise a supervisory employee would be liable for the negligent act of another employee though he would not be the superior or master of that employee in the sense the law means it. [Citations omitted.]

Id., 397 Pa. at 39, 153 A.2d at 259-60.

The record is devoid of indication that Dr. Ferroni exercised any control over Dr. Harrer. Rather, the record reflects Dr. Ferroni’s confidence in Dr. Harrer’s abilities. Dr. Harrer merely was covering for Dr. Ferroni on the weekend in question. As Dr. Ferroni points out, he was not consulted nor in any way involved in Mrs. Strain’s medical care on the day of her miscarriage. Dr. Harrer was not required to seek Dr. Ferroni’s guidance before administering medical care or before offering medical advice. See Dr. Ferroni’s brief, at 11-13. Conversely, Dr. Harrer, as a covering physician, was at liberty to use his judgment in treating a patient. His responsibilities were not subject to oversee by Dr. Ferroni. See N.T., Deposition of Dr. Harrer, November 4, 1986, at 12, 34, 35.

We are compelled to agree with Dr. Ferroni’s argument, as follows:

Dr. Harrer, as a covering doctor, was free to use his own discretion, knowledge, and skill in the care of the patient, without any control, interference or input from Dr. Ferroni. Dr. Harrer had exclusive control over the manner of care. The undisputed facts clearly indicate that Dr. Ferroni was not an “employer” or “superior” of Dr. Harrer. Because he was not subject to control by Dr. Ferroni and, further, because he had exclusive control over the manner of performance of the care he rendered, Dr. Harrer was an independent contractor and the conduct of Dr. Harrer, pursuant to Pennsylvania law, imposes no liability on Dr. Ferroni. See Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987). Green v. Independent Oil Company, 414 Pa. 477, 201 A.2d 207 (1964).

Dr. Ferroni’s brief, at 11.

The record indicates that Dr. Harrer did not contact Dr. Ferroni for advice on any kind of regular basis. N.T., Deposition of Dr. Harrer, November 4, 1986, at 35. He did not consult with him regarding patients except under certain limited circumstances. Id. at 21-22; 34-35. He did not seek Dr. Ferroni’s approval before engaging in the practice of medicine. Most basically, the nature of the professional relationship shared by Drs. Ferroni and Harrer is not the type of arrangement contemplated by the cases which deal with principal-agency law. We can not impute to Dr. Ferroni any liability for Dr. Harrer’s actions.

Since the only issue of fact (that Dr. Harrer and Dr. Ferroni maintained a coverage agreement) is not in dispute, the trial court had only a matter of law to resolve. See Trial court opinion, November 20, 1990, at 3. Melmed v. Motts, 341 Pa.Super. 427, 491 A.2d 892 (1985). The trial court found that Dr. Ferroni did not control or supervise Dr. Harrer; nor did Dr. Ferroni maintain those rights. More specifically, the trial court held that the Strains “failed to establish any employment relationship between defendants Ferroni and Harrer.” Trial court opinion, November 20, 1990, at 4. Based on the record before us, we will not disturb the trial court’s conclusion.

Finally, we note the following. Because we determined that Dr. Harrer was rightly granted summary judgment in this litigation, the underlying claims incident to the complaint lodged against Dr. Ferroni are null and void. Finding no merit to the Strains’ inquiries on appeal, we affirm the trial court’s orders granting summary judgment in favor of Dr. Ferroni and Dr. Harrer.

Orders affirmed.

      . More basically, Dr. Kappy does not set forth the appropriate standard of care recognized by the medical profession in the community applicable to Mrs. Strain’s circumstances, let alone posit that Dr. Harrer provided treatment in a manner inconsistent with that standard or in an incompetent fashion.

      . We do not discount evidence that Mrs. Strain suffered injury as the incidental result of miscarrying a child, but, there is no indication that the actions of Dr. Harrer causally resulted in her condition.

      . The Strains assert that Dr. Harrer said to Beverly Strain, "if you lose it, you lose it,” with reference to her unborn child. See Appellants' brief, October 23, 1990, at 5; N.T., Deposition of Beverly Strain, March 18, 1987, at 128, 135. Cf. N.T., Deposition of Dr. Harrer, November 4, 1986, at 28.

      . The Restatement (Second) of Torts § 46, Comment “d” reads, "Pliability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” See Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976) (discussing Restatement (Second) of Torts § 46). See Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (same); Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986) (same); Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985) (same); Lazor v. Milne, 346 Pa.Super. 177, 179, 499 A.2d 369, 370 (1985) (it is for the court to determine in the first instance whether conduct is so extreme or outrageous as to permit recovery); see Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (reiterates same principle). See Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 492 A.2d 1382 (1985) (discusses “intent").

      . In terms of the emotional distress itself, Mrs. Strain stated that she did not seek psychological or psychiatric counseling following the miscarriage. N.T., Deposition of Beverly Strain, March 18, 1987, at 228-29. See Kazatsky, supra.

      . Moreover, Dr. Harrer is licensed to practice medicine and his license is independent from that of Dr. Ferroni.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    592 A.2d 706
    COMMONWEALTH of Pennsylvania v. Robert JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 10, 1991.

      Paul George, Philadelphia, for appellant.
    John K. McDonald, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. The issue in this case is whether the lower court erred in denying appellant’s motion to dismiss under criminal procedure rules 1100 and 6013. Pa.R.Crim.P., Rules 1100 and 6013, 42 Pa.C.S.A. We find that the lower court abused its discretion in denying the motion.

The relevant facts are as follows: On October 30, 1989, appellant was convicted in the Philadelphia Municipal Court of resisting arrest and simple assault. Under Rule 6006(a) of the Pennsylvania Rules of Criminal Procedure, 42 Pa. C.S.A., appellant appealed to the Common Pleas Court of Philadelphia on November 13, 1989. According to Rule 6013(g) of the criminal rules, a trial de novo in the court of common pleas on appeal from Municipal court shall commence within ninety (90) days after the notice of appeal is filed from Municipal Court. Pa.R.Crim.P., Rule 6013(g), 42 Pa.C.S.A. Thus, the run date for commencement of trial in this case was February 13, 1990.

On February 8, 1990, at appellant’s first trial listing, the Commonwealth requested a continuance because the complainant police officer had not been subpoenaed. The Commonwealth also had not located the trial file for the case. The case was therefore continued until March 15, 1990. On March 12, 1990, appellant filed a written motion to dismiss citing Pa.R.Crim.P., Rules 1100 and 6013, 42 Pa.C.S.A. At the second trial listing on March 15, 1990, the Commonwealth was again unprepared to proceed to trial because the subpoena for the police officer witness had been sent to the wrong police district. The Commonwealth requested a continuance and appellant moved for dismissal.

On April 30, 1990, the trial court denied appellant’s motion to dismiss, and after a bench trial, appellant was convicted of resisting arrest. Appellant’s post-verdict motions were denied and he filed this timely appeal. On appeal, appellant raises one issue: whether the Commonwealth failed to exercise due diligence in bringing him to trial within the time period set forth in Rule 6013(g).

Rule 6013(g) of the Pennsylvania Rules of Criminal Procedure provides:

(g) A trial de novo in the Court of Common Pleas shall commence within a period of ninety (90) days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 1100 shall apply to such trials in the Court of Common Pleas.

Pa.R.Crim.P., Rule 6013(g), 42 Pa.C.S.A. Rule 1100 of the Rules of Criminal Procedure is implicated by Rule 6013(g). The rule sets forth time periods within which trial is to commence in the ordinary court case, i.e., one which is not appealed to the court of common pleas from the Municipal Court as in the case sub judice. See Pa.R.Crim.P., Rule 1100(a)(2) and (a)(3), 42 Pa.C.S.A. (180 days to commence trial where defendant is incarcerated and 365 days to commence trial where defendant is at liberty on bail).

Rule 1100 provides for certain periods of time to be excluded in determining the period for commencement of trial:

(1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.

Pa.R.Crim.P., Rule 1100(c). The rule also provides that any defendant who is held in pre-trial incarceration for a period exceeding 180 days minus the excludable time specified in Rule 1100(c), is entitled upon petition to immediate release on bail. Id., Rule 1100(e). If a defendant continues on bail after the expiration of 365 days and trial has not commenced, the defendant may apply to the court for an order ■dismissing the charges. Id., Rule 1100(g). The rule then provides in regard to a motion to dismiss for violation of the rule that:

If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. If, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Id.

In ruling on the motion to dismiss, the lower court found that the Commonwealth had exercised due diligence in attempting to bring appellant to trial and had justifiable reasons for seeking extensions. The court also held that the delay in this case was not of such a magnitude as to be “presumptively prejudicial.” See Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990). Continuing with this line of reasoning, the lower court found nothing in the record that would demonstrate any prejudicial effect on the defendant because of the delay.

The determination of whether to grant an extension of time for commencement of trial is within the realm of discretion of the trial court. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). Absent an abuse of that discretion, the grant of extension will not be overturned on appeal. Id. In evaluating a petition for extension, the test for determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Brawner, 381 Pa.Super. 265, 553 A.2d 458 (1989), allocatur denied 522 Pa. 617, 563 A.2d 886 (1989). It is the Commonwealth’s burden to prove its due diligence in the prosecution of a defendant. Common wealth v. Jones, 314 Pa.Super. 515, 461 A.2d 276 (1983). When reviewing a trial court’s decision as to whether the Commonwealth has met its burden of proving due diligence, we consider only the evidence presented by the Commonwealth and so much of the evidence of the defendant as remains uncontradicted. Commonwealth v. Brawner, 381 Pa.Super. at 271, 553 A.2d at 460-61.

Recently, the Pennsylvania Supreme Court addressed the subject of the due diligence of the Commonwealth in bringing a defendant to trial in Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). In that case, the supreme court held that the Commonwealth had failed to act with due diligence despite the Commonwealth’s contention that because of the “term” system of criminal court in Lancaster County, it would be unduly harsh to require the district attorney’s office to monitor cases and arraignment dates to assure that no speedy trial problem arose. Under the “term” system, the district justices notified defendants as to the arraignment dates on which they were to report. Then, the defendant’s case would be assigned to the next criminal trial “term” following his arraignment date. The supreme court found the Commonwealth’s contention that it would be unfair to require them to monitor the Rule 1100 status of cases under this system “sheer nonsense,” and held that due diligence imposes on the government the duty to employ simple recordkeeping systems in these circumstances. Id., 526 Pa. at 89, 584 A.2d at 905-06. The court found the delay in the Browne case had to be “fully attributed” to the Commonwealth because of the failure of the district attorney’s office to properly track the case. Id., 526 Pa. at 90, 584 A.2d at 906.

In Browne, the supreme court also admonished this court for what the supreme court termed an inclination on the part of Superior Court “to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100.” Commonwealth v. Browne, supra, 526 Pa. at 89, 584 A.2d at 905. Further, the court noted that “this case [Browne ] presented the opportunity to prevent further emasculation of Rule 1100.” Id.

The Commonwealth has been held to have failed to have acted with due diligence in circumstances similar to Browne. In Commonwealth v. McCutcheon, 339 Pa.Super. 8, 488 A.2d 281 (1985), a panel of this court held that the Commonwealth’s failure to maintain a proper recordkeeping system precluded a finding of due diligence in regard to the Commonwealth’s petition to extend. In McCutcheon, after the criminal complaint had been filed against appellant in March, 1982, and after a preliminary hearing in his case had been held, a member of the district justice’s staff misfiled the papers in his case in a “closed file.” When appellant’s counsel, in November, 1982, saw the police officer who had filed the complaint, he inquired as to the status of the case. The police officer contacted the District Attorney’s office and learned that the papers in the case had never been received from the district justice. A member of the district attorney’s office then obtained the papers from the district justice and filed the complaint and transcript. Then, on November 15, 1982, the Commonwealth filed a petition for an extension of time under Rule 1100. Id., 339 Pa.Superior Ct. at 11, 488 A.2d at 282-83.

The court in McCutcheon found that although the Commonwealth had clearly exercised due diligence upon learning that the papers in appellant’s case had been misfiled by the district justice, there was no evidence of record that due diligence had been exercised between the filing of the complaint and the date of discovery of the district justice’s mistake. Id., 339 Pa.Superior Ct. at 14, 488 A.2d at 284. The court reasoned:

So far as appears, the Commonwealth had no system to assure that cases held for court, especially those in which the Commonwealth attorney was not present at the preliminary hearing, were properly processed. Such a failure in recordkeeping “precludes a finding of due diligence.” Commonwealth v. Metzger, 249 Pa.Super. 107, 113, n. 4, 375 A.2d 781, 784, n. 4 (1977) (citations omitted). Although the standard of due diligence does not require the Commonwealth to exercise every conceivable effort, it does require the Commonwealth to make reasonable efforts. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Here the record is devoid of evidence of any effort to follow cases in which a preliminary hearing has been held where a Commonwealth attorney is not present and the defendant is bound over for court____

Commonwealth v. McCutcheon, supra, 339 Pa.Super. at 14, 488 A.2d at 284 (emphasis in original).

Similarly, in Commonwealth v. Bennett, 320 Pa.Super. 150, 466 A.2d 1362 (1983), it was held that unexplained delay or delay caused by the inability of the Commonwealth to locate appellant’s case file, demonstrated a lack of due diligence by the Commonwealth precluding a granting of the Commonwealth’s petition to extend the Rule 1100 time period. In Bennett, the case was repeatedly listed for trial and continued in certain instances with no explanation offered by the Commonwealth. In certain other instances, the case was continued because the quarter sessions file could not be located. Id,., 320 Pa.Superior Ct. at 159, 466 A.2d at 1364. The Commonwealth did not offer an explanation as to the whereabouts of the file or as to the efforts which were asserted by the Commonwealth to locate the file. Id. The Bennett court held, “We cannot shift the burden of securing a speedy trial to the defendant, just because the case was unfortunately fraught with confusion and mismanagement.” Id., 320 Pa.Superior Ct. at 160, 466 A.2d at 1367.

Our task in the instant case is to determine whether the delay herein was reasonable on the Commonwealth’s part or was not sufficiently reasonable to mandate a finding of due diligence. The record shows that on February 8, 1990, at the first listing of the case prior to the run date, the Commonwealth was not prepared to proceed because it had failed to subpoena the complainant police officer. The record also shows that the Commonwealth had not located the case file on that date. The excuse provided by the Commonwealth for having failed to locate the file was that the District Attorney’s office, consisting of 240 attorneys, had insufficient time from January 26, 1990, on which date a trial readiness conference had been held, to February 8, 1990, a period of thirteen days, in which to locate the file. The Commonwealth provided no explanation for its failure to subpoena the witness for the February 8, 1990 listing. When the case was continued and came up for its second trial listing on March 15, 1990, the Commonwealth was again unprepared, having sent its subpoena of the complainant officer to the wrong police district.

Based on the cases we have previously discussed, and on our supreme court’s admonition in Browne, supra, we cannot find, as did the lower court, that the Commonwealth exercised due diligence in bringing the case to trial. The Commonwealth failed to bring in the witness for the first listing of the case, and failed to have in its possession the trial file. The Commonwealth provided no reason for its failure to bring in the witness. Its reason for not having possession of the case file was insufficient. Under the reasoning of Browne and other cases, supra, the responsibility for tracking a case through the criminal system and ensuring adherence to important deadlines is the Commonwealth’s. Surely this responsibility includes taking reasonable measures to ensure the availability of a case file for a trial listing. While exceptions to this rule are bound to occur, the Commonwealth’s excuse in this case that the district attorney’s office is too large to permit the availability of the file does not amount to a sufficient basis upon which a finding of due diligence can be made.

We also cannot say from the record that the Commonwealth exerted reasonable efforts to bring in the witness the second time. The Commonwealth had been granted a continuance by the court for this precise purpose, but presented no evidence which would justify or explain the district attorney’s “mistake” in sending the subpoena to the wrong police district. In the absence of evidence which would justify the error and demonstrate that due diligence was being exercised in spite of it, we cannot say that the Commonwealth put forth reasonable efforts to bring the case to trial. Surely, given the fact that the witness was not properly subpoenaed for the previous trial listing, a reasonable effort to follow up on the filing of the subpoena for the March 15, 1990 listing was required so that the witness could be brought in on time. We have no evidence that the Commonwealth exerted such efforts. The only effort on the Commonwealth’s part of which we are aware is that one subpoena was sent to the wrong office. There is no evidence that the subpoena was monitored in any fashion by the district attorney’s office, or that the Commonwealth filed the subpoena in a sufficient amount of time to allow for error so as to make the witness’ appearance on March 15, 1990 a probability. It has been held that the mere assertions of the Commonwealth as to its due diligence in bringing in a witness for trial are insufficient to support a request for extension in the absence of evidence supporting such assertions. Commonwealth v. McNeill, 274 Pa.Super. 257, 418 A.2d 394 (1980). The Commonwealth failed to provide such evidence in the instant case.

The case cited by the Commonwealth in support of its position, Commonwealth v. Leatherbury, 326 Pa.Super. 179, 473 A.2d 1040 (1984), is inapposite. In that case, the Commonwealth subpoenaed the witness for the date the case was listed for trial, but subsequently, when the date for trial was moved back one day, the district attorney handling the case simply contacted the complainant/witness and asked him to be “on call” on the new date. The complainant agreed, but after a mix-up on the date of trial, did not appear. The court in Leatherbury held that “failure to subpoena a witness cannot be equated with a lack of due diligence, especially where the witness in question is also the complainant.” Id., 326 Pa.Superior Ct. at 190, 473 A.2d at 1045. The court continued, however, that “this Court on prior occasions has suggested that the practice of putting witnesses on call may actually be preferable to issuing a subpoena for them where there is likelihood that a case may be delayed.” Id. Thus, the issue in Leatherbury was whether it was an exercise of due diligence to put the witness on call for the modified trial date without issuing a new subpoena.

That issue is not present here, as it is clear that the police witness/complainant in this case was not on call. The subpoena was the only attempted contact with the witness of which the lower court had evidence. For the reasons we have previously stated, that failed contact was insufficient to sustain the lower court’s finding of due diligence on the part of the Commonwealth.

The Commonwealth also contends that the period from February 13 to March 15 was excludable because the appellant failed to object to the continuance at the February 8, 1990 trial listing. While a waiver may exist where a defendant fails to voice objection in such circumstances, Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), we have no record proof of the Commonwealth’s allegation. In the absence of such, we cannot rely merely on the Commonwealth’s unsupported assertion. See Commonwealth v. McNeill, supra.

We also do not find the Commonwealth’s argument based on Commonwealth v. Africa, supra, persuasive. Africa, unlike the present case, involved the issue of judicial delay in bringing the defendant to trial due to the problems which arise from court calendars. In such a case, the court ruling on or reviewing a ruling on a motion to dismiss under Rule 1100 must determine whether the Commonwealth acted with due diligence, but must also engage in a two-step analysis. The first inquiry is whether the delay in the case is “presumptively prejudicial.” 524 Pa. at 123, 569 A.2d at 923. If so, the court must then employ the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for violations of a defendant’s right to a speedy trial. In Africa, the due diligence of the Commonwealth was not an issue as it is in the instant case. The court in Africa therefore focused on the other factors to be analyzed in a case of judicial delay under Rule 1100, including the “presumptively prejudicial” analysis urged by the Commonwealth in the instant case.

Although the Commonwealth urges this court to reject a “stopwatch approach” to due diligence, we are persuaded that the recent decision of our supreme court in Commonwealth v. Browne, supra, indicates that a return to the original purpose of Rule 1100 is in order. That purpose was stated in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), in which the court directed that the present Rule 1100 be developed. In Hamilton, the court discussed the speedy trial rule and the balancing test of Barker v. Wingo, supra, the former “two-term” rule in Pennsylvania under which an accused had to be tried within the second trial term of his commitment, and the problems associated with that rule, including a tremendous backlog of criminal cases. To deal with the problems of the backlog as well as the protection of criminal defendants’ speedy trial rights, the Hamilton court directed that a rule of criminal procedure be formulated which would fix “a maximum time limit in which individuals accused of a crime shall be brought to trial, in the future, in this Commonwealth.” Id., 449 Pa. at 308-09, 297 A.2d at 133. In so holding, the court reasoned:

An alternative to a balancing test is a stated time period within which accused persons must be either brought to trial or released from any threat of prosecution. The theory behind this type of rule is that it eliminates the inherent vagueness encompassed in any balancing process and it avoids the necessity of a court determining a violation of this constitutional right on a case-by-case basis. It is also felt that a mandatory time requirement will act as a stimulant to those entrusted with the responsibility of managing court calendars.

Id., 449 Pa. at 308, 297 A.2d at 132-33.

Pursuant to this reasoning, Rule 1100 was developed. Although subsequent cases have on occasion urged rejection of a “stopwatch” approach, the original purpose of Rule 1100 was to prescribe a fixed time period after which a defendant must be discharged. In Commonwealth v. Browne, supra, our supreme court urged us to reject an approach to Rule 1100 which accepts all excuses proffered for failure to bring a defendant to trial within the specified time period. Our rejection of the Commonwealth’s reasons for its failure to bring appellant to trial in a timely fashion in the instant case is in accordance with the Browne approach.

The Commonwealth also contends that the period of time from March 12 to April 30 should be excluded from the Rule 1100 computation “since the court could not have begun the trial until it disposed of defendant’s motion.” The Commonwealth cites Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989), allocatur denied 524 Pa. 606, 569 A.2d 1365 (1989), in support of this proposition. While the Palmer case does indeed support the Commonwealth’s argument, it cannot save the prosecution of this case because the Commonwealth did not exercise due diligence in bringing the case to trial on March 15, 1990. Therefore, the exclusion of time from March 15 to April 30 is irrelevant, as are the three days from March 12 to March 15 because the Commonwealth did not exercise due diligence in bringing appellant to trial at the February 8, 1990 listing.

Accordingly, because the case was not brought to trial within the time frame of Rule 6013(g) and the Commonwealth did not demonstrate due diligence in bringing appellant to trial, we will vacate the judgment of sentence, dismiss the charges, and discharge the defendant.

Judgment of sentence vacated; defendant discharged; charges dismissed.

      . At the time of this action, the applicable Rule 1100 time period was 180 days. Commonwealth v. McCutcheon, supra, 339 Pa.Super. at 12, 488 A.2d at 283.

      . See, e.g., Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) (court declines to exercise a "stopwatch approach” to due diligence).


author: WIEAND, Judge:

text:
    592 A.2d 712
    STATE FARM MUTUAL INSURANCE COMPANY, Appellant, v. Barbara J. JUDGE, Administrator of the Estate of Lionel C. Judge, Terry E. Cook, Coleen L. Michael, Mitchell Dean Emery, Dennis Emery and Erie Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 10, 1991.

      Leo M. Stepanian, Butler, for appellant.
    Lee A. Montgomery, Butler, for appellees Michael, Emery and Erie Ins.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from a declaratory judgment, we are presented with a complex issue of automobile insurance coverage.

On or about November 19, 1988, Mitchell Dean Emery was driving a 1985 Camaro, owned by Terry E. Cook, when it struck and killed a pedestrian. The 1985 Camaro was insured under a policy of automobile insurance which had been issued by State Farm Mutual Insurance Company (State Farm). Terry E. Cook was the former boyfriend of Mitchell Emery’s mother, Coleen L. Michael. Cook and Michael had separated in August, 1988, when Cook moved to New York, where he accepted employment. Upon moving, Cook left his Camaro with Coleen Michael so that she could use it while her vehicle was being repaired. Eight days before the Camaro was involved in the fatal accident, however, Cook had revoked Coleen Michael’s permission to use the Camaro and had instructed her to deliver the vehicle to his parents for storage. Coleen Michael’s vehicle, which was being repaired, was insured pursuant to a separate policy which also had been issued by State Farm. Mitchell Dean Emery lived with his father and customarily drove a Volkswagen which was owned by his father and insured by Erie Insurance Company.

On the day of the fatal accident, Emery had obtained his mother’s permission to drive the Camaro. It is clear, however, that he did not have permission from Cook, who owned the vehicle. Cook, in fact, had no knowledge that Emery was operating the Camaro. Indeed, there was evidence that Cook had specifically directed that Emery was not to operate the Camaro when the vehicle had been left with Coleen Michael.

The trial court found that Emery had been driving the Camaro without the owner’s permission or consent; and, therefore, State Farm was not responsible for providing coverage under the policy which had been issued on that vehicle. The court found, however, that the Camaro was a substitute vehicle for the car owned by Coleen Michael, which was being repaired. Therefore, the court concluded, State Farm owed a duty to defend Coleen Michael and Mitchell Emery under and pursuant to the policy which had been issued on the Michael vehicle. The court thereafter made no determination regarding coverage provided by Erie under the policy written by Erie on the Volkswagen customarily driven by Emery. State Farm appealed.

Our standard of review was recited in Federal Kemper Ins. Co. v. Neary, 366 Pa.Super. 135, 530 A.2d 929 (1987), as follows:

In reviewing a judgment entered in a declaratory judgment action, we are bound by the same narrow standard of review which exists in equity actions. Shaffer v. Flick, 360 Pa.Super. 192, 195-196, 520 A.2d 50, 51 (1987); Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 544, 479 A.2d 1037, 1038 (1984). A judgment of a trial court will not be reversed absent a clear abuse of discretion or error of law. Lombardo v. DeMarco, 350 Pa.Super. 490, 495, 504 A.2d 1256, 1258 (1985). The test is not whether we would have reached the same result on the evidence presented, but whether the trial court’s conclusion can reasonably be drawn from the evidence. Estate of Tippins, 487 Pa. 107, 112 n. 2, 408 A.2d 1377, 1380 n. 2 (1979); Lombardo v. DeMarco, supra, 350 Pa.Super. at 495, 504 A.2d at 1258; Hoffman v. Gekoski, 250 Pa.Super. 49, 52, 378 A.2d 447, 448 (1977). Where the trial court’s factual determinations are adequately supported by the evidence, we may not substitute our judgment for that of the trial court. Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981).

Id., 366 Pa.Superior Ct. at 139, 530 A.2d at 930-931.

The interpretation of a policy of insurance is a question of law. In Geisler v. Motorists Mutual Ins. Co., 382 Pa.Super. 622, 556 A.2d 391 (1989), the Court said:

The interpretation of an insurance policy is a question of law that is properly reviewable by the court. Winters v. Erie Ins. Group, 367 Pa.Super. 253, 257, 532 A.2d 885, 887 (1987). See also Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984); Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 388, 471 A.2d 891, 893 (1984). In construing the policy, we are mindful that “[p]olicy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured____ The insured’s reasonable expectations are the focal point in reading the contract language.” Winters v. Erie Ins. Group, supra 367 Pa.Super. at 257-58, 532 A.2d at 887 (citations omitted). Our object, as is true in interpreting any contract,
is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument---- Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement____ Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.
Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted). See also Votedian v. General Acc. Fire & Life Assur. Corp., 330 Pa.Super. 13, 16-17, 478 A.2d 1324, 1326 (1984).

Id., 382 Pa.Superior Ct. at 626-627, 556 A.2d at 393.

The pertinent language of the State Farm policies is as follows:

Who Is an Insured
When we refer to your car, a newly acquired car or a temporary substitute car, insured means:
1. you;
2. your spouse;
3. the relatives of the first person named in the declarations;
4. any other person while using such a car if its use is within the scope of consent of you or your spouse; and
5. any other person or organization liable for the use of such a car by one of the above insureds.

Under the language of these policies, neither Mitchell Emery nor Coleen Michael could qualify as an insured unless one or the other had Cook’s consent to operate the Camaro at the time of the accident. See: Federal Kemper Ins. Co. v. Neary, supra at 139, 530 A.2d at 931, citing Brower v. Employers’ Liability Assurance Co., Ltd., 318 Pa. 440, 444, 177 A. 826, 828 (1935); Belas v. Melanovich, 247 Pa.Super. 313, 372 A.2d 478 (1977). See also: Annot., Omnibus Clause as Extending Automobile Liability Coverage to Third Persons Using Car with Consent of Permittee of Named Insured, 21 A.L.R. 4th 1146 (1983).

First, it is clear and the trial court found as fact that Emery did not have the consent of Cook, the owner, to drive the Camaro. The evidence is unequivocal that express consent had not been given. It is also clear that consent cannot be inferred from the circumstances. “Implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced.” Federal Kemper Ins. Co. v. Neary, supra at 140, 530 A.2d at 931, citing Brower v. Employers’ Liability Assurance Co., Ltd., supra at 444, 177 A. at 828; Esmond v. Liscio, 209 Pa.Super. 200, 206, 224 A.2d 793, 796 (1966).

“However, ‘permission’ requires something more than mere sufferance or tolerance without taking steps to prevent the use of the automobile, and permission cannot be implied from possession and use of the automobile without the knowledge of the named insured.” [Blashfield, Automobile Law and Practice] § 315.10, at 608. “[T]he critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be ‘a connection made’ with the named insured’s own conduct; proof of ‘acts, circumstances, and facts, such as the continued use of the car,’ will be insufficient ‘unless they attach themselves in some way to the acts’ of the named insured.” Belas v. Melanovich, supra, 247 Pa.Super. at 324, 372 A.2d at 484, quoting Beatty v. Hoff, 382 Pa. 173, 177, 114 A.2d 173, 174 (1955). See: Crespy v. Bliesmer, 248 Pa.Super. 441, 445, 375 A.2d 179, 181 (1977); Helwig v. Esterly, 205 Pa.Super. 185, 189, 208 A.2d 10, 12 (1965).

Federal Kemper Ins. Co. v. Neary, supra at 140, 530 A.2d at 931. The evidence here was that Cook had not engaged in conduct which implied consent to Emery’s operation of the Camaro. Mitchell Emery had operated the Camaro on two prior occasions. The first occurred only in a parking lot while Cook was present in the car. On a second occasion, Emery reportedly had operated the car, but there was no evidence that Cook had consented to it or approved of it thereafter. On the other hand, Cook’s testimony was unequivocal that he had forbidden Emery to operate the Camaro because he feared that it would cause his insurance policy to be cancelled. Because, as the trial court found, there was neither express nor implied consent for Emery to operate Cook’s vehicle, the State Farm policy written to provide coverage for the Camaro did not cover operation of the vehicle on. November 19, 1988, when Mitchell Emery was involved in the fatal accident.

The State Farm policy issued to Coleen Michael defines a “temporary substitute car” as follows:

Temporary Substitute Car—means a car not owned by you or your spouse, if it replaces your car for a short time. Its use has to be with the consent of the owner. Your car has to be out of use due to its breakdown, repair, servicing, damage or loss. A temporary substitute car is not considered a non-owned car.

(emphasis added). It is important to observe that to qualify as a substitute car, the vehicle must replace the insured’s vehicle “for a short time” and be with the “consent of the owner.”

Here, the trial court specifically found that “Mr. Cook [had] rescinded his consent on or about November 11, 1988----” This finding is fully supported by the evidence. The revocation of consent became effective immediately; it did not continue for a reasonable time thereafter. Without continuing consent, however, the Camaro could not be deemed a “temporary substitute vehicle.” After the owner’s consent had been revoked, the vehicle was subject to use only in accordance with the owner’s directions, i.e., to return it to his parents for storage. When the vehicle was subsequently used by Emery for travel to a shopping center, the vehicle was not covered as a “temporary substitute car” under the State Farm policy which covered Coleen Michael’s automobile.

Appellees’ reliance upon Randig v. O’Hara, 123 Pa.Super. 251, 187 A. 83 (1936), is misplaced. In that case, a son had been making regular use of his mother’s car, and he retained in his possession the keys for the car. A jury found that the mother’s permission to use the car had not been revoked under circumstances recited by the Superior Court as follows:

She was evidently vexed at his late use of the car the night before, and on learning that he proposed to go to Butler that day, told him that he must not use the car [Mrs. O’Hara’s version]; or ‘not to take the car’ [Eugene O’Hara’s version]; or T don’t want you to take the car’ [Mrs. Anderson’s version]. But she did not require or ask him to turn over the keys to her, or revoke his general authority to use the car, or do anything else by way of countermanding his right to operate the car. He, evidently, did not regard it as a command or anything more than an expression of her wishes, for he got up from the table, went out to the garage, took out the car and drove to Butler. She paid for the gasoline purchased by him that day.

Id. 123 Pa.Super. at 256, 187 A. 83. The Court held that these facts did not require the entry of judgment n.o.v. in favor of the garnishee-insurer, reasoning:

In any event we do not think that the testimony requires a finding that the general authority of Eugene O’Hara to operate the car was abrogated or suspended by the fact that his mother may have told him that day not to take the car, so long as she permitted him to keep the keys, which she had given him and which supplied the physical means of operation. He did not so regard it, but considered it as only an expression of her wishes rather than a revocation of authority. He had used the car in disregard of such expression before and did it again, because he felt he had the right to use it whenever he wanted to or felt like it; and she had never deprived him of the power to use it by taking away the keys which made it possible for him to use it.
The jury could very well find that notwithstanding the language used by Mrs. O’Hara that morning—whichever version be accepted—the general authority of Eugene to use the car had not been abrogated or suspended so as to take him out of the insurance coverage of the policy.

Id. 123 Pa.Super. at 256, 187 A. 83.

In the instant case, the evidence was unequivocal and the trial court found as fact that Cook’s consent to Coleen Michael’s use of the Camaro had been rescinded. In view of this rescission, Cook’s consent to use the car did not continue for an undefined, additional period. The revocation of consent became effective immediately. Thereafter, the car could be driven only for the purpose of delivering it to Cook’s parents for storage. Although Ms. Michael may have had a reasonable time within which to deliver the Camaro to Cook’s parents, she did not have permission to use the car for any other purpose after permission to do so had been revoked. As such, the Camaro ceased to be a “temporary substitute car” as soon as Cook’s permission to use the same had been rescinded. Coleen Michael’s grant of permission to her son to use the Camaro on the date of the accident was ineffective to restore the vehicle to the status of a “temporary substitute car.”

It follows that the declaratory judgment entered by the trial court must be reversed. The findings of fact made by the trial court which heard the evidence are that neither Coleen L. Michael nor her son, Mitchell Dean Emery, had permission from Terry E. Cook, the owner, to operate the Camaro on the date of the accident. It may be that coverage exists under the policy of insurance issued by Erie on the Volkswagen owned by Emery’s father. This issue was not decided by the trial court, however, and with respect thereto we venture no opinion. Erie’s coverage, if any, must await further determination.

Judgment reversed and now entered in favor of appellant.

      . The trial court's findings do not accept or reject this testimony. With respect thereto, the court simply made no findings.


text:
    592 A.2d 716
    Howard W.F. WOLFE, Jr., Appellant, v. Joseph B. PORTER, Appellee.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 11, 1991.

      James A. Zurick, Shamokin, for appellant.
    Myron M. Moskowitz, Shamokin, for appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

The dispute in this action of ejectment is between neighbors and pertains to the ownership of a seventeen (17) foot wide strip of land along a common property line. Joseph B. Porter, the defendant, holds record title to the disputed land. Howard W.F. Wolfe, Jr., the plaintiff, claims title by adverse possession. In order to establish his claim, however, it is necessary that Wolfe tack his possession to a period in which his parents allegedly possessed the land in dispute. The trial court held that tacking, under the facts alleged in plaintiff’s complaint, was not available to establish title by adverse possession and sustained defendant’s preliminary objections in the nature of a demurrer to plaintiff’s amended complaint. After careful review, we affirm.

The standard of appellate review was stated in Ward v. Serfas, 387 Pa.Super. 425, 564 A.2d 251 (1989), as follows:

When preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989). Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. Creeger Brick & Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa.Super. 30, 560 A.2d 151 (1989). All doubts are resolved in favor of the pleader. Furthermore, by filing preliminary objections in the nature of a demurrer, appellees have admitted the factual allegations of the complaint for purposes of the demurrer. Id.

Id. 387 Pa.Super. at 428-429, 564 A.2d at 252-253.

Generally, [a] complaint in an action of ejectment must allege facts sufficient to establish a good cause of action. More particularly, the Rules of Civil Procedure relating to actions of ejectment specifically require that the plaintiff in his complaint describe the land and set forth an abstract of title upon which he relies, at least from the common source of the adverse titles of the parties.

22 Std.Pa.Prac.2d § 120:62 (1984). Although the requirement that the complaint set forth an abstract of title is mandatory and a complaint lacking the same is insufficient, several courts of common pleas have held that no abstract of title is required where the plaintiff bases his action on a claim of adverse possession. See: Lazarchick v. Pecovich, 44 Pa.D. & C.2d 39 (Schuylkill 1967); Pepple v. Neibert, 6 Pa.D. & C.2d 567 (Franklin 1955). See also: 22 Std.Pa. Prac.2d § 120:64 (1984) (requirement of abstract of title not applicable to plaintiff claiming right to possession based on adverse use); 3 Anderson Pa.Civ.Prac. § 1054.9 (1963) (same). We conclude that such a rule is eminently reasonable and that plaintiffs amended complaint is not defective merely because it fails to contain an abstract of title. A review of the facts alleged in the complaint, however, makes it apparent that plaintiff cannot establish title to the disputed land by adverse possession.

“[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594, 66 A.2d 828, 829 (1949). In the instant case, the plaintiff-appellant has been in possession of the disputed tract of land since 1979. This is an insufficient period to establish title by adverse possession.

Appellant argues, however, that when the period of his possession is tacked on to the period during which his predecessor in title held possession, a continuous and adverse possession for more than 21 years is established.

The applicable law was stated in Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988), as follows:

In Castronuovo v. Sordoni, 357 Pa.Super. 187, 515 A.2d 927 (1986), a panel of this Court reviewed the applicable law as follows:
The possession of successive occupants may be tacked, but only where there is privity between them. Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 22 A.2d 70 (1941). For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. Stark v. Lardin, 133 Pa.Super. 96, 1 A.2d 784 (1938).
But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed * * * The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor.
Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 88, 63 A.2d 124, 126 (1949) (quotations omitted). Our court has held that acceptance of a deed describing boundary lines confined the premises to the area within the boundaries, and that such a deed did not convey inchoate rights acquired by incompleted adverse possession. Masters, supra. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it. Shaffer v. Lauria, 50 Pa.Super. 135 (1912).

Id., 357 Pa.Superior Ct. at 193-194, 515 A.2d at 930-931 (footnote omitted).

Thus, a grantee cannot tack his grantor’s possession of land when the grantor does not convey such land to him. The only recognized exception occurs where an intent to convey more land than that described may be inferred from the circumstances or the deed itself. Castronuovo v. Sordoni, supra, 357 Pa.Superior Ct. at 193 n. 7, 515 A.2d at 931 n. 7.

Id. 370 Pa.Super. at 589-590, 537 A.2d at 31-32. See also: 1 P.L.E. Adverse Possession § 23 (1986).

Plaintiff-appellant’s title to his land was acquired by deed from his mother, Catherine M. Conrad, formerly Catherine M. Wolfe, on July 31, 1979. Prior thereto, the land had been owned by plaintiff’s parents, Howard W.F. Wolfe and Catherine M. Wolfe, husband and wife, who had acquired title by deed in 1952. Howard W.F. Wolfe died April 27, 1978; whereupon, Catherine M. Wolfe became the sole owner thereof. Plaintiffs parents, it is alleged, were in continuous possession of their own land and also of the disputed tract between 1952 and 1979. There is no suggestion, however, that title by adverse possession was perfected by adjudication or, indeed, that a claim of title by adverse possession was ever made against the owners of the adjoining tract.

When Catherine M. Wolfe (Conrad) conveyed to her son, she conveyed only the land for which she had record title. The deed contained a metes and bounds description of the land; and this description did not include any part of the land now in dispute. Where title by adverse possession is inchoate, a deed by a grantor which fails to convey such inchoate right is ineffective to create privity which allows tacking. The grantor’s failure to include the disputed tract in the 1979 conveyance to her son prevented the son from tacking his possession of the disputed tract on to that of his parents to establish his own title by adverse possession. Castronuovo v. Sordoni, supra.

Appellant argues that an intent to include the disputed tract can be inferred from the language of the deed. We disagree. A careful examination of the deed discloses no reference to the disputed tract or to any inchoate right thereto. “The deed, in itself, creates no privity as to land outside its calls.” Gerhart v. Hilsenbeck, supra 164 Pa.Super. at 88, 63 A.2d at 126. In the absence of a conveyance of the grantor’s inchoate rights, we assume that appellant’s predecessors either occupied the disputed land permissively or that they abandoned every intention of holding adversely before the conveyance. Masters v. Local Union No. 472, United Mine Workers, supra. See also: Steese v. Bettleyon, 32 D. & C.3d 630 (Northumberland 1984) (where grantor had claim of adverse possession to certain tract of land, and subsequent deed to grantee specifically excluded that tract, grantee was precluded from asserting continuing claim of adverse possession, since he cannot be said to be in privity with grantor); Watson v. Teres, 50 Del.Co. 296 (1962) (although party claiming title by adverse possession may tack possession of predecessors, party must show sufficient privity between them and that each of them has transferred to his successor in some lawful manner the adverse possession or inchoate interest held).

Appellant also contends that the familial relationship between his predecessors in title and himself creates the privity necessary to permit tacking. We disagree. There was also a familial relationship between grantor and grantee in Castronuovo v. Sordoni, supra, but the Court refused to find privity where the deed from father to daughter failed to include land which had been possessed by the father for more than twenty-one (21) years. The decision in Shaffer v. Baylor’s Lake Ass’n, Inc., 392 Pa. 493, 141 A.2d 583 (1958), is not to the contrary. In that case there was not an intra family deed in which the grantor had failed to include any reference to an actual or inchoate interest in additional land. The Court did not hold that a family relationship created privity for purposes of tacking where the disputed property had been excluded from a conveyance between grantor and grantee.

As we have observed, appellant’s own possession falls short of the required twenty-one (21) year period and the amended complaint discloses that there is no privity between appellant and his predecessors in title which would enable him to tack his period of possession to the possession of his predecessors. Therefore, appellant has failed to state a claim for which relief may be granted, and the trial court properly granted appellee’s preliminary objection in the nature of a demurrer.

Affirmed.

      . Plaintiff complains that the trial court failed to consider preliminary objections which he filed to the defendant’s preliminary objections. However, there was nothing in those preliminary objections to prevent the trial court from determining, in response to defendant’s preliminary objection in the nature of a demurrer, that the complaint failed to state a cause of action. The absence of a legally cognizable cause of action may be raised at any time prior to or at trial. See: Rocker v. Harvey Co., 370 Pa.Super. 32, 535 A.2d 1136 (1988); Pa.R.C.P. 1032.