author: PER CURIAM:

text:
    435 A.2d 1301
    Joseph V. MURRAY, Jr., and Johanna K. Murray, his wife, v. ABCON, INC., d/b/a The Three a Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Oct. 16, 1981.

      Thomas E. Waters, Jr., Norristown, for appellant.
    Daniel M. Haug, Willow Grove, for appellees.
    Before SPAETH, BROSKY, and HOFFMAN, JJ.
   PER CURIAM:

In this equity action seeking specific performance of a contract to sell real estate, appellants appealed from the en banc order of the lower court dismissing exceptions to the decree nisi. Because no final decree has been entered on the docket, we cannot reach the merits and thus quash the appeal.

Orders dismissing exceptions following nonjury trials are interlocutory and nonappealable until judgment has been entered on the docket. See, e.g., Heffner v. Bock, 287 Pa.Super. 347, 430 A.2d 319 (1981); Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). Similarly, orders dismissing post-trial motions following jury trials are interlocutory and nonappealable until entry of final judgment. See, e.g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981). These decisions rest upon Rule 301 of the Pennsylvania Rules of Appellate Procedure, which provides in pertinent part:

(a) Entry upon docket below. No order shall be appeal-able until it has been entered upon the appropriate docket in the lower court.....
(c) Orders not appealable. A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.

Appellate Rule 301 intermeshes with the provisions of the Rules of Civil Procedure governing post-trial motions practice. For example, all post-trial motions or exceptions must be filed within ten days after the verdict or decision by the court. See Pa.R.Civ.P. 227.1 (jury trials), and 1038(d) (non-jury trials). Together, these rules provide essentially uniform procedural prerequisites for appeals in civil actions at law. See Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, supra 291 Pa. at 404, 435 A.2d at 1289. See also E. J. McAleer & Co. v. Iceland Products, Inc., 475 Pa.Super. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1. We see no justification for developing different procedural prerequisites for appeal in equity cases. Rule 301 of our Appellate Rules does not differentiate between actions at law and those in equity. Post-decision motion practice in equity cases and post-trial practice in other civil cases are comparable. Appeals cannot be taken from the decree nisi. Bogosian v. Foerderer Tract Committee, 264 Pa.Super. 84, 90, 399 A.2d 408, 410 (1979). Like all other civil post-trial motions, exceptions in equity actions must be filed within ten days of the decree nisi. Pa.R.Civ.P. 1518, 1519. See Pa.R.Civ.P. 1512 (nonsuit). Like other civil cases, upon the dismissal of exceptions, the court shall “affirm, modify or change the decree nisi accordingly, or enter any other appropriate order.” Pa.R.Civ.P. 1519(b). Compare Pa.R.Civ.P. 1038(e). Like in other civil cases, if the final decree is not duly entered on the docket, see Pa.R.Civ.P. 1521, it shall be entered upon praecipe of any party. See Pa.R.A.P. 301(d); Pa.R.Civ.P. 237, 1039. We believe that the equity procedures are sufficiently analogous of those in other civil cases, see Pa.R.Civ.P. 1501 and Explanatory Note to Pa.R.Civ.P. 227.1, to require that a final decree be entered on the docket as a condition precedent to appeal. See Mercadante v. Ranieli, 271 Pa.Super. 565, 414 A.2d 397 (1979). Accordingly, because no final decree was entered, we must quash this appeal.

Appeal quashed.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    436 A.2d 192
    Bernet IGNACIC, Appellant, v. PENN CENTRAL TRANSPORTATION COMPANY, a corporation, and Robert W. Blanchette, Richard C. Bond, and John H. McArthur, Trustees of the property of Penn Central Transportation Company.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed May 15, 1981.
    Rehearing Denied Nov. 9, 1981.
    Petition for Allowance of Appeal Denied Dec. 2, 1981.

      Thomas Hollander, Pittsburgh, for appellant.
    Aloysius F. Mahler, Pittsburgh, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This appeal is from an order refusing to remove a compulsory nonsuit. The action is under the Federal Employers’ Liability Act (FELA), ch. 149, 35 Stat. 65 (1908), as amended, 45 U.S.C. § 51 et seq., to recover damages for injuries appellant claims he suffered in an accident he had while working as a pipefitter for appellee railroad. The lower court held that appellant failed to present evidence on the basis of which the jury could find, first, that appellant’s accident caused his injuries, and next, that a release appellant gave the railroad was based on such a mutual mistake that it should be set aside. We have concluded, however, that the jury could have made both of these findings. We shall therefore reverse and remand for new trial.

1

Appellant was injured on May 4, 1974, while working as a pipefitter in appellee’s engine house at Conway, Pennsylvania. His duties required him to go down some steps into a pit below the tracks. As he was doing so, he slipped and fell, striking his head, back, and wrist. Appellant and two of his co-workers testified that the steps were worn, that there was no hand rail in place, that grease, oil, and water were on the surfaces of the lower levels of the work area, and that these conditions had existed for some time and had been the subject of frequent complaints by the workmen.

Appellant missed about five weeks of work, during which time he received physical therapy for injury to his neck. By the middle of June his symptoms had abated and he was told by the physician who had been treating him that he could return to work, which he did. Shortly after returning to work he executed a release to appellee in exchange for a settlement of $2,250.

It seems undisputed—or at least so the jury could have found—that when the settlement was agreed to, both appellant and appellee’s claims agent, who also testified at trial, thought that appellant was fully recovered. Appellant had some pain, but he attributed it to a bursitis condition he had had for some time; it did not much hamper his ability to work. However, starting in the latter part of 1974 appellant experienced increasing pain and difficulty in doing his work. In March 1975 he sought medical attention from a general practitioner, Harry Seltzer, M.D. Dr. Seltzer hospitalized appellant and referred him to David Kraus, M.D., an orthopedic surgeon. Appellant was hospitalized for over three months. At least part of this time he was paralyzed in all four extremities. After a period of recuperation at home he was hospitalized again in order to be placed in a halo apparatus. Not until June 1976 was he well enough to return to work.

2

FELA actions are governed by federal law. Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157 (1931). This is true as regards proof of causation, Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), adequacy of medical testimony, Sentilles v. Inter-Carribean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), and the validity of a release given by an injured worker to the employer, Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 72 S.Ct. 312, 36 L.Ed. 398 (1952). The Act is to be liberally construed on behalf of injured workers, Gallick v. Baltimore and Ohio R.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), with the result that often recovery will be proper under the Act when it would not be under the common law of negligence, Rodriquez v. Delray Connecting Railroad, 473 F.2d 819 (6th Cir. 1973). Only in the most frivolous FELA action is a compulsory nonsuit proper. Ciarolla v. Union Railroad Company, 235 Pa.Super. 137, 338 A.2d 669 (1975).

a

Appellant’s medical witnesses were his treating physicians, Dr. Seltzer and Dr. Kraus; they had testified on deposition, and their depositions were admitted in evidence at trial. Both stated on direct examination that they believed that appellant’s fall could have contributed to his later problems, and both were unshaken by cross-examination. Dr. Kraus, appellant’s orthopedic surgeon, had written appellant’s counsel, “It is my opinion that this injury certainly could have attributed [sic; contributed?] to the weakening of the transverse ligament that allowed the subsequent instability to develop.” During cross-examination appellee’s counsel read this passage back and asked if that was still his opinion, to which Dr. Kraus replied, “Right, sir.” R.R. 184a-85a.

Under the FELA, the plaintiff’s case should go to the jury if the testimony is that the injury might be or could be a consequence of the accident. Sentilles v. Inter-Carribean Shipping Corp., supra. The Third Circuit has stated the rule as being that “a trial court is justified in withdrawing such issues from the jury’s consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee.” Pehowic v. Erie Lackawanna Railroad Co., 430 F.2d 697, 700 (3d Cir. 1970). The plaintiff need not prove that the defendant’s negligence was the exclusive cause of the injury, only that it was one cause. Heater v. Chesapeake & Ohio Railway Company, 497 F.2d 1243 (7th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333,. 42 L.Ed.2d 287 (1974). See also, Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). Applying these liberal principles here, we conclude that appellant’s case should have gone to the jury, unless appellant is barred by his release.

b

The validity of a release of a FELA case is a question of federal law. Dice v. Akron, Canton & Youngstown R. Co., supra. The burden of proof is on the party seeking to set aside the release. Callen v. Pennsylvania Railroad Company, 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242 (1948). In deciding whether the proof justifies setting aside a release, the cases distinguish between proof of a mutual mistake as to a material fact concerning the worker’s present condition, when the release will be set aside, and proof of a mutual mistake as to a material fact concerning the expected future development of a present condition, when the release will not be set aside. E. g., Edwards v. Western & Atlantic Railroad, 552 F.2d 137 (5th Cir. 1977); Robertson v. Douglas Steamship Company, 510 F.2d 829 (5th Cir. 1975); Wooten v. Skibs A/S Samuel Bakke, 431 F.2d 821 (4th Cir. 1969); Chicago & North Western Railway Company v. Curl, 178 F.2d 497 (8th Cir. 1949); Robles v. Trinidad Corporation, 270 F.Supp. 570 (S.D.N.Y.1966).

It is easier, however, to state this rule than to apply it. The problem is, What does “present condition” mean?

Courts have had no difficulty in finding a mutual mistake concerning present condition when the mistake concerned the nature of the injury. For example, in Robertson v. Douglas Steamship Company, supra, the release was set aside on proof that it was executed in the belief that the injured worker had suffered only superficial injuries to his neck, back, and limbs when in fact, as it later turned out, he was afflicted with a rare condition known as idiopathic retroperitoneal fibrosis, which is a scarring of the lining in the lower abdomen. Cases such as Robertson, however, are not dispositive of the present case, for while they show that a mistake concerning “present condition” includes a mistake concerning the nature of the injury, they do not show what, if anything, more may be included.

The lower court was of the opinion that nothing more may be included, and that a release should be set aside only when the mistake concerned the nature of the injury:

[T]he mistake of fact must go to the nature of the injury to which the Release relates. Question^] as to the extent, outcome, or expected course of healing of the injury are not sufficient and are to be distinguished from a mistake as to the nature of the injury.

Slip op. at 3 (emphasis added).

Thus, the court limited a mistake concerning “present condition,” on proof of which a release will be set aside, to a mistake concerning “the nature of the injury.” A mistake concerning “expected future development of a present condition,” on proof of which a release will not be set aside, was characterized as including mistakes “as to the extent, outcome, or expected course of healing of the injury.”

We acknowledge that some cases may be read as supporting the lower court’s statement of the law. In Robles v. Trinidad Corporation, supra, the worker had been accidentally locked into a food freezer on his ship for about an hour at a temperature of 15 degrees Fahrenheit. After being treated for frostbite and his initial anxiety reaction, he sued his employer and, following an out-of-court settlement, executed a release. Later, in trying to have the release set aside, he presented the testimony of a psychiatrist that he had a psychiatric or emotional condition resulting from the accident at the time he executed the release. The court refused to set aside the release, finding that there had at most been a miscalculation of the consequences of the accident. One of the cases discussed with approval in Robles was Moyer v. Scholz, 22 A.D.2d 50, 253 N.Y.S.2d 483 (1964). In Moyer the testimony indicated that when the release was given, both parties believed that the plaintiff had completely recovered from the effects of the automobile accident she had been in, but that later it developed that she had suffered a whiplash injury, the effects of which had not yet become evident when the release was given. The court found the parties’ mistake to be only a failure to appreciate the consequences of a known injury and refused to set aside the release. The lower court opinion in this case quotes with approval from both Robles and Moyer. Slip op. at 3-4.

It may be that on their facts, Robles and Moyer are correctly decided. If, however, they are to be understood as the lower court understood them—as holding that a release will be set aside only when the mistake concerns the nature of the injury and never when the mistake concerns the extent of the injury—we find them unpersuasive.

In Chicago & North Western Railway Company v. Curl, supra, the initial diagnosis, on the basis of which the release was executed, was severe sprain of the neck, mild sprain of the dorsal spine, and contusions of the left scalp. Later,- in trying to have the release set aside, the worker presented medical testimony to the effect that he had also suffered a slipped or prolapsed cervical disc, which would result in permanent disability. The Eighth Circuit found this satisfactory evidence of mutual mistake. In Wooten v. Skibs A/S Samuel Bakke, supra, the testimony was that when the release was executed, both sides assumed that the injury ¡to the worker’s ankle would not be permanent, but it later turned out otherwise. In reversing the district court’s dismissal of the action and remanding for trial, the Fourth Circuit quoted Judge Learned HAND with approval: “ ‘To tell a layman who has been injured that he will be about again in a short time is to do more than prophesy about his recovery. No doubt it is a forecast but it is ordinarily more than a forecast; it is an assurance as to his present condition, and so understood. * * * The issue was at best for the jury; * * Scheer v. Rockne Motors Corp., 68 F.2d 942, 945 (2d Cir. 1934).” 431 F.2d at 823.

So it seems to us. To say to a worker, as in Wooten, “The injury to your ankle is not permanent,” is the same as saying, “The present condition of your ankle is such that your injury will not be permanent.” If both parties believe this, there is a mutual mistake concerning the worker’s present condition, and the release should be set aside. The line drawn by the court in Robles and Moyer, and by the lower court, is too sharp. It may be that the parties are not mistaken about the nature of the injury, if one speaks in general terms; in other words, they may correctly believe that the injury is to the ankle, as in Wooten, or to the neck, as in Chicago & North Western. However, they may be so mistaken that the extent of the injury that for practical purposes, that is, so far as the worker’s ability to work is concerned, they may as well be mistaken about the nature of the injury.

We therefore conclude that a mistake concerning “present condition” may include not only a mistake concerning the nature of the injury but also a mistake concerning the extent of the injury. We find this conclusion both more logical than that reached in Robles and Moyer, and also, more consistent with the goals sought to be achieved by the Congress in enacting the FELA. See, e. g., Gallick v. Baltimore and Ohio R. R. Co., supra; Ciarolla v. Union Railroad Company, supra.

It follows that the lower court should have permitted appellant’s case to go to the jury. Appellant argues that when he executed his release, he and appellee both believed that he had fully recovered from his fall but that he was actually suffering from a weakened transverse ligament. Brief for Appellant at 7. Viewed in the light most favorable to appellant, the evidence he presented at trial could support such a finding. If one were to adopt the approach taken by Robles and Moyer, and by the lower court, the evidence would still not be sufficient to set aside the release, for the parties’ mutual mistake concerned not the nature of appellant’s injury but its extent. However, if one adopts the approach taken by Wooten, as we have concluded we should, appellant’s evidence was sufficient to set aside the release. To believe that one is fully recovered is the same as believing that there will be no future consequences. If there nevertheless are future consequences, by definition one was in fact not fully recovered. Accordingly, there was a mistake concerning one’s “present condition,” as distinguished from a mistake concerning “expected future development.” If this mistake was mutual, one’s release should be set aside.

Reversed and remanded for new trial.

WICKERSHAM, J., concurs in the result.


author: CERCONE, President Judge:

text:
    436 A.2d 197
    Alex A. DiSANTO v. DAUPHIN CONSOLIDATED WATER SUPPLY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Oct. 9, 1981.

      Michael W. Gang, Harrisburg, for appellant.
    Gary M. Lightman, Harrisburg, for appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Dauphin Consolidated Water Supply Company [hereinafter Dauphin] takes this appeal from the lower court’s dismissal of its preliminary objections to appellee DiSanto’s complaint. Through its preliminary objections, Dauphin challenged the subject matter jurisdiction of the court of common pleas to hear this controversy. An interlocutory appeal was taken as of right under the former Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672 (1953) which was expressly repealed by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1069] effective June 27, 1980. The sole question presented in this appeal, therefore, is whether the court of common pleas below properly exercised its subject matter jurisdiction over this controversy.

The facts of this case which have been properly pleaded are as follows: DiSanto is a real estate developer who has in the past engaged the services of Dauphin, a public utility in the business of supplying water service to the public. In the course of its business, Dauphin also secures the services of certain “approved” independent contractors to install water mains and water service lines in order to supply water to its customers.

On May 10, 1977, DiSanto contacted Dauphin and requested the latter to provide water service at his Woodridge Estates development. Dauphin agreed to provide the requested service and gave DiSanto a price of $29,471.00 for the installation of a water main and forty-nine customer service lines. DiSanto then obtained an estimate from an outside contractor to perform the same work for $17,875.00. Dauphin, however, refused DiSanto’s request that this outside contractor be permitted to install the required water facilities for the lower price. Since Dauphin would not supply water over lines installed by DiSanto’s contractor, DiSanto paid the sum of $29,471.00 to Dauphin on May 10, 1977 in order to have the lines installed.

DiSanto then instituted this equity action by filing a complaint with the Court of Common Pleas of Dauphin County seeking both compensatory and punitive damages as well as injunctive relief. Dauphin timely filed preliminary objections asserting that the complaint questioned the reasonableness of the conditions required by a public utility for the extension of service. On this basis, Dauphin contends that the Pennsylvania Public Utility Commission has initial or primary jurisdiction over such controversies, and that DiSanto has, therefore, failed to exhaust his available administrative remedies before bringing the matter into the courts.

The lower court judge overruled Dauphin’s preliminary objections by order dated March 19, 1979. His reasoning for doing so, as set out in his Memorandum Opinion dated August 16, 1979, was that this case is “a contractual dispute involving a public utility . . . and a private citizen.” Citing Leveto v. National Fuel Gas Distrib., 243 Pa.Super. 510, 366 A.2d 270 (1976), he concluded that the courts, rather than the PUC, have jurisdiction to adjudicate the claim presented. This interlocutory appeal followed.

In Allport Water Auth. et al. v. Winburne Water Co., 258 Pa.Super. 555, 393 A.2d 673 (1978), the Court summarized the law with regard to the jurisdictional boundaries between the PUC and the courts:

We start with the principle “that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC—not the courts.” Lansdale Borough v. Philadelphia Electric Company, 403 Pa. 647, 650, 170 A.2d 565, 567 (1961). See also Chester County v. Philadelphia Electric Company, 420 Pa. 422, 218 A.2d 331 (1966); Einhorn v. Philadelphia Electric Company, 410 Pa. 630, 190 A.2d 569 (1963); Fogelsville & T. Electric Company v. Pa. P. & L. Company, 271 Pa. 237, 114 A. 822 (1921); Byer v. Peoples Natural Gas Company, 251 Pa.Super. 75, 380 A.2d 383 (1977); Bell Telephone Company v. Sanner, 248 Pa.Super. 273, 375 A.2d 93 (1977); Elkin v. Bell Telephone Company, 247 Pa.Super. 505, 372 A.2d 1203 (1977). Thus, it has long been recognized that the reasonableness, adequacy and sufficiency of public utility service are all matters within the exclusive original jurisdiction of the PUC. See Duquesne Light Company v. Monroeville Borough, 449 Pa. 573, 298 A.2d 252 (1972); Behrend v. Bell Telephone Company, 431 Pa. 63, 243 A.2d 346 (1968); Elkin v. Bell Telephone Company, supra. It is equally well-settled, however, that the PUC is not jurisdictionally empowered to decide private contractual disputes between a citizen and a utility. See Byer v. Peoples Natural Gas Company, supra; Leveto v. National Fuel Gas Distribution Corporation, 243 Pa.Super. 510, 366 A.2d 270 (1976); Reading & Southwestern Street Railway Company v. Pennsylvania PUC, 168 Pa.Super. 61, 77 A.2d 102 (1950).

Id., 258 Pa.Super. at 558-559, 393 A.2d at 674-675. See also Public Utility Law, Act of May 28,1937, P.L. 1053, art. IV, § 401, 66 P.S. § 1171 (1959) now Public Utility Code, Act of July 1, 1978, P.L. 598, No. 116, § 1, 66 Pa.C.S. § 1501 (1980). “The courts retain jurisdiction of a suit for damages based on negligence or breach of contract wherein a utility’s performance of its legally imposed and contractually adopted obligations are examined and applied to a given set of facts.” Behrend v. Bell Telephone, 242 Pa.Super. 47, 59, 363 A.2d 1152, 1158 (1976) (citation and footnote omitted) vacated and remanded on other grounds 473 P. 320, 374 A.2d 536 (1977). As we stated in Bell Telephone Co., of Pennsylvania v. Sanner, 248 Pa.Super. 273, 276, 375 A.2d 93 (1977) (per curiam), however, the question of the reasonableness or adequacy of Bell’s service was not before the court in Behrend. “When a utility’s failure to maintain reasonable and adequate service is alleged, regardless of the form of the pleading in which the allegations are couched, it is for the PUC initially to determine whether the service provided by the utility has fallén short of the statutory standard required of it.” Id., 248 Pa.Super. at 277, 375 A.2d at 95 (footnote omitted). Thus, this writer posited in Leveto, supra : “While it is true that certain aspects of a utility’s contracts are regulated by the Public Utility Law, the act does not grant the PUC general supervisory power over contracts.” 243 Pa.Super. at 519, 366 A.2d at 275 (citation omitted).

As the foregoing survey of case law indicates, and, indeed, mandates, the precise question to be considered in this appeal is whether the facts of this case involve issues, be they contractual or not, concerning the reasonableness, adequacy and sufficiency of public utility service in which case the matter is within the initial jurisdiction of the Pennsylvania Public Utility Commission, or whether the facts of this case constitute only a private contractual dispute between a utility and a citizen concerning non-service related matters over which a court of general jurisdiction is empowered to act. Dauphin contends that this case is within the primary or initial jurisdiction of the PUC because DiSanto’s purported contractual dispute is in essence a complaint concerning Dauphin’s policy of requiring that the installation of water service lines be done by its own approved contractors. Since this requirement was a condition of extending water service, Dauphin takes the position that the installation agreement is inextricably interwoven with the reasonableness of Dauphin’s methods of providing utility service to the public—a consideration which is uniquely within the province of the PUC. We agree. For the reasons discussed below, we conclude the issue of whether a water company may rightfully require that the installation of public utility facilities must be performed by its approved contractor rather than by a developer himself or a contractor employed by a developer is one which must be decided initially by the Pennsylvania Public Utility Commission.

The Public Utility law provides that:

§ 1171. Character of service and facilities.
Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable'service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public. Such service also shall be reasonably continuous and without unreasonable interruptions or delay. Such service and facilities shall be in conformity with the regulations and orders of the commission. Subject to the provisions of this act and the regulations or orders of the commission, every public utility may have reasonable rules and regulations governing the conditions under which it shall be required to render service.

66 P.S. § 1171 (now 66 Pa.C.S. § 1501) (emphasis added). Moreover, the definitional part of the act states that the term “service” is “[u]sed in its broadest and most inclusive sense [and] includes any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished or supplied by public utilities ... in the performance of their duties under this part to their patrons, employees, other public utilities, and the public.” Id. at § 1102(20) (now 66 Pa.C.S. § 102) (emphasis added). See also Behrend v. Bell Telephone of Pa., 431 Pa. 63, 65, 243 A.2d 346, 347 (1968) (decided before Title 66 was consolidated; language remains virtually the same). Also, the term “facilities” as defined in the act “means all the plant and equipment of a public utility including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished or supplied for, by, or in connection with, the business of any public utility ...” 66 P.S. § 1102(10) (now 66 Pa.C.S. § 102). Therefore, in Lansdale Boro. v. Phila. Electric Co., 403 Pa. 647, 650, 170 A.2d 565, 566-567 (1961), our Supreme Court stated that the PUC has initial jurisdiction over matters involving the installation of utility facilities. Likewise, in Overlook Development Co. v. Public Service Commission, 101 Pa.Super. 217, 158 A. 869, aff’d per curiam 306 Pa. 43, 158 A. 869 at 873 (1932), this Court, dealing with an earlier version of the act, held that a privately constructed water main became a “facility” immediately upon its utilization by a public utility.

The act also contains the following provisions with respect to “rates”:

§ 1141. Rates to be just and reasonable.
Every rate made, demanded, or received by any public utility, or by any two or more public utilities jointly shall be just and reasonable, and in conformity with regulations or orders of the commission.

66 P.S. § 1141 (now Pa.C.S. § 1301).

Under the act, the term “rate” is defined as encompassing “every individual, or joint fare, toll, charge, rental, or other compensation whatsoever of any public utility . . . made, demanded, or received for any service within this act, offered, rendered, or furnished by such public utility . . . and any rules, regulations, practices, classifications or contracts affecting any such compensation, charge, fare, toll, or rental.” 66 P.S. § 1102(19) (now 66 Pa.C.S. § 102). Therefore, our Supreme Court, in determining the reasonableness of an electric utility’s charge for the installation of underground service lines, stated in Einhorn v. Phila. Electric Co., 410 Pa. 630, 634, 190 A. 569 (1963) that “[b]oth the Public Utility Law and the decisions of this Court, with unmistakable clarity, require that questions dealing with excessive charges be decided in the first instance exclusively by the Commission.” Moreover, questions concerning the rates charged for the installation of utility facilities are the type of matters which should be included in a “tariff” filed with the PUC under 66 P.S. § 1142 (now 66 Pa.C,S. § 1302). These tariffs then have the force and effect of law. See 66 P.S. § 1143 (now 66 Pa.C.S. § 1303) (adherence to tariffs required); Behrend v. Bell Telephone Company, 242 Pa.Super. at 70, 363 A.2d at 1165 (tariffs “filed under authority of law, have the force of law and their reasonableness is to be determined by the Public Utility Commission”).

The act, as quoted above, therefore, envisions that the PUC has jurisdiction over matters relating to the reasonableness of a utility’s services, facilities and rates, as well as over matters concerning the utility’s formation of reasonable rules and regulations governing the conditions under which service, facilities and rates shall be rendered, constructed or imposed. Instantly, the water lines would be used by Dauphin in the performance of its duties as a public utility, and the requirement of using Dauphin’s approved contractor to install the water lines was stated as a condition to the supplying of water service. In addition, the installation charge imposed by Dauphin in the course of its public utility business is a “rate” under the terms of the act. Thus, the questions at the core of this controversy deal with (1) the reasonableness of the utility’s policy requiring that facilities be constructed only by certain contractors approved by the utility; (2) the reasonableness of making adherence to this policy a condition to providing utility service; and (3) the reasonableness of the rates imposed for the construction of the utility facilities. Conversely, as we stated in Allport, “[although appellees would have us hold otherwise, the instant case does not simply involve a breach of contract.” 258 Pa.Super. at 561, 393 A.2d at 676. We, therefore, conclude that this matter should initially be heard by the PUC instead of by the courts.

DiSanto contends that Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) requires a contrary result. We cannot agree. In Allport we noted that “the scope of that decision is distinctly delimited. Our Supreme Court recognized that Feingold’s claims merely raised questions involving the utility’s performance of its contractual or tort law obligations owed to Feingold.” 258 Pa.Super. at 563, 393 A.2d at 677 (emphasis added). Nevertheless, DiSanto contends that Feingold ousts the PUC of jurisdiction to act because the instant case involves an action for damages. This argument has been recently refuted by our Supreme Court in Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 130, 420 A.2d 371, 375 (1980) where Justice Larsen stated that this “interpretation of Feingold is too broad and would ‘virtually strip’ the PUC of all jurisdiction merely by framing the allegations in contractual and/or trespassory terminology, and demanding damages.”

Having already determined that the instant case involves matters within the normal sphere of the PUC, we must now decide whether the PUC’s jurisdiction is exclusive or whether the bifurcated procedure adopted by Elkin should be followed in the instant case. Such a determination, however, is dependent upon the adequacy of the administrative remedies available to the appellee through the PUC. If the available administrative remedies are complete and adequate to make the complainant whole, then the PUC has exclusive jurisdiction over the controversy and there is no recourse to the courts outside of the normal channels of appeal to the Commonwealth Court. However, where the administrative remedies are not adequate and complete, the PUC’s jurisdiction is not exclusive and an action for damages may be brought in a court of common pleas based upon the PUC’s initial determination of the matters within its realm of expertise. See Loy v. West Penn. Water Co., 291 Pa.Super. 152, 435 A.2d 614 (1981). See also Elkin and Allport, supra.

In the case at bar, DiSanto can be made whole by the PUC regardless of the specific allegations and prayers for relief contained in his complaint. The Commissioner will initially determine the reasonableness of Dauphin’s actions, and if DiSanto prevails in this regard, the Commission can vary and reform the contract for the installation of facilities under 66 P.S. § 1360 (now 66 Pa.C.S. § 508), determine the just and reasonable rate to be charged under 66 P.S. § 1148(c) (now 66 Pa.C.S. § 1308(c)), order Dauphin to pay a refund of the excessive rates charged plus interest under 66 P.S. § 1153 (now 66 Pa.C.S. § 1312), and order Dauphin to discontinue its practice of requiring that its own contractors install water service lines instead of other capable independent contractors who agree to install the lines according to required specifications, and further, to cease making adherence to this practice a condition to the providing of utility service under 66 P.S. §§ 1183 and 1342, (now 66 Pa.C.S. §§ 1505 and 501 respectively). Since these administrative remedies are more than adequate to make DiSanto whole, the case is exclusively within the PUC’s jurisdiction and no recourse to the courts, outside of the normal appellate process, is warranted.

The order of the court below sustaining jurisdiction is reversed, Dauphin’s preliminary objections are granted, and the case is transferred to the PUC without prejudice to the rights of either party with respect to procedures before that tribunal.

      . The Rules of Appellate Procedure no longer allow interlocutory appeals as of right in cases where subject matter jurisdiction is upheld by the lower court. See Pa.R.A.P. 311(b) and note thereto (effective 120 days after December 23, 1978). Such cases will now be handled as interlocutory appeals by permission pursuant to Pa.R.A.P. 312.
      The Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 1722(a) provides that “[a]ll statutes shall be suspended to the extent that they are inconsistent with rules prescribed under this paragraph.” Since Rule 311(b) is inconsistent with former statute 12 P.S. § 672, the statute was suspended as of the effective date of the rule which was promulgated pursuant to the Judicial Code. The delayed repeal of section 672 by the Judiciary Act Repealer Act expressly rescinded what was already impliedly suspended.
      The new procedure under Rule 311(b), therefore, took effect on April 22, 1979 and the appeal in the instant case was taken on April 17, 1979. Thus, we conclude that the interlocutory appeal as of right in the instant case was proper under the former procedure.

      . In Simmons v. West Penn Power Company, - PUC - (c-77090013, January 4, 1979), the Pennsylvania Public Utility Commission determined that West Penn’s policy of requiring complainants to pay $220.00 for trenching work that could have been done for $75.00 was a reasonable regulation due to various circumstances. However, the Commission concluded that the rate for this service should have been tariffed. Since there was no tariff with respect to this charge, the Commission ordered a refund and ordered further that West Penn cease and desist making charges for the installation of underground service facilities until a tariff has been filed.

      . Obviously, if the case did not involve the reasonableness or adequacy of services, facilities or rates, then the case would not go to the PUC at all, but rather, it would go directly to the courts. See e. g., Feingold, 477 Pa. at 11 n.7, 383 A.2d at 796 n.7 and Behrend, 242 Pa.Super. at 59, 363 A.2d at 1158. Accord Allport, 258 Pa.Super. at 563, 393 A.2d at 677.


author: BROSKY, Judge:

text:
    436 A.2d 203
    Selma HARRIS and Renee Greenberg v. ST. CHRISTOPHER’S HOSPITAL FOR CHILDREN and Northwestern National Life Insurance Company. Appeal of NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Oct. 9, 1981.
    Petition for Allowance of Appeal Denied Jan. 22, 1982.

      Peter C. Paul, Philadelphia, for appellant.
    Daniel E. Bacine, Philadelphia, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Appellees are co-administratrices and sole heirs of decedent, Rose Weinberg. Mrs. Weinberg was employed by St. Christopher’s Hospital for Children (hereinafter “St. Christopher’s”) until September 29, 1975. During the term of her employment, St. Christopher’s maintained a plan of life insurance under a group policy with Northwestern National Life Insurance Company (hereinafter “Northwestern”). The policy was in St. Christopher’s name. Under the terms of the policy, Mrs. Weinberg was entitled, upon termination of her employment, to convert her coverage under the group policy to coverage under an individual policy, by applying for and paying the applicable premium within thirty-one (31) days after termination of her employment. Evidence of insurability is not required. The policy also provides that if the insured dies during the thirty-one day period, the amount of life insurance the insured would have been entitled to convert will be paid as a claim under the group policy, regardless of whether or nor the insured made application and paid the first premium for the individual policy.

If the insured is not notified of the conversion privilege at least fifteen days prior to the expiration of the thirty-one day period, the insured is entitled to an additional sixty day period in which to exercise such right. Thus, the decedent had a total of 91 days in which to exercise her conversion privilege, or until December 30, 1975. Mrs. Weinberg never received written notice of her right to convert her policy, however, and died December 9, 1975, 71 days after termination of her employment, without converting her policy.

Appellees aver that they are the beneficiaries of their mother’s policy. They argue that their mother’s death within the 91 day statutory period may be deemed equivalent to the exercise of her right of conversion. It was under this theory that they sought recovery of the amount of insurance to which they claim their mother would have been entitled under an individual policy. The case was tried before an arbitration panel, who awarded appellees the sum of $2,833.99 plus interest. Both St. Christopher’s and Northwestern appealed from the award.

Thereafter, all of the parties filed motions for summary judgment. The lower court entered an order in favor of appellees and against both the employer, St. Christopher’s, and the insurer, Northwestern. The appeal concerns Northwestern only.

The central issue for our determination is whether decedent’s death 71 days after termination of her employment without her conversion of the group policy to an individual one may be deemed an exercise of the conversion privilege. The lower court held that death within the extended conversion period provided by 40 P.S. § 532.7 is equivalent to conversion. We affirm.

40 P.S. § 532.7 provides:

§ 532.7 Notice of conversion privileges.
If any individual insured under a group life insurance policy hereafter delivered in this State becomes entitled under the terms of such policy to have an individual policy of life insurance issued to him without evidence of insurability, subject to making of application and payment of the first premium within the period specified in such policy, and if such individual is not given notice of the existence of such right at least fifteen days prior to the expiration date of such period, then, in such event the individual shall have an additional period within which to exercise such right, but nothing herein contained shall be construed to continue any insurance beyond the period provided in such policy. This additional period shall expire fifteen days next after the individual is given such notice but in no event shall such additional period extend beyond sixty days next after the expiration date of the period provided in such policy. Written notice presented to the individual or mailed by the policyholder to the last known address of the individual or mailed by the insurer to the last known address of the individual as furnished by the policyholder shall constitute notice for the purpose of this section.

Northwestern contends that there was no insurance coverage on the life of Rose Weinberg at the time of her death. It is Northwestern’s position that 40 P.S. § 532.7 specifically provides that life insurance coverage does not continue beyond the period of time set forth in the policy. Northwestern bases its position upon the following proviso contained in the statute:

[b]ut nothing herein contained shall be construed to continue any insurance beyond the period provided in such policy.

The fact that Mrs. Weinberg was not given any notice of her conversion privilege did not, argues Northwestern, extend her insurance coverage under the policy; it only extended the time during which she could have exercised the conversion privilege.

The conversion privilege contained in decedent’s insurance policy states:

CONVERSION PRIVILEGE: An Insured may purchase an individual policy of life insurance from the Company if all or part of his Life Insurance terminates because of termination of active work or membership in a class or classes eligible for coverage or because of any reductions in the Amount of Life Insurance in accordance with the Schedule of Benefits. Evidence of insurability is not required. The Insured must apply for the individual policy and pay the applicable premium within 31 days after termination of his Life Insurance. The individual policy will be a participating policy, without disability or other supplementary benefits, in any one of the forms customarily issued by the Company at that time, at the option of the Insured, except term insurance. The amount of life insurance under the individual policy may be equal to or less than the amount of insurance terminated, at the option of the Insured. The premiums for the individual policy will be determined by the class of risks to which the Insured belongs and the form and amount of the policy at his then attained age.
* * 4! * * *
An individual policy of life insurance issued under this provision will be effective at the end of the 31 day period during which application for the individual policy may be made.
The amount of life insurance an Insured would have been entitled to convert under this provision, if any, will be paid as a claim under the Group Policy if he dies during the 31 days immediately following termination of his Life Insurance. This amount will be paid whether or not the Insured made application and paid the first premium for the individual policy.

[It is clear that there must be consideration for the new, individual policy. The insured purchases the individual policy, and thereafter pays the applicable premium amounts.] The essence of the privilege lies in the fact that the insured does not have to produce evidence of insurability, which would otherwise be required.

This fact is very significant to an older employee such as Rose Weinberg, who was 61 and in ill health when her employment was terminated. There can be no doubt that under normal circumstances, an older individual in failing health has a difficult time obtaining life insurance. In recognition of this fact, insurance companies offer terminated employees the opportunity to continue their insurance coverage under an individual policy without producing evidence of insurability.

Here, company’s clear responsibility, as delineated by the statute, was to notify the insured of her conversion privilege. The consequence of its failure to notify was to be exposed to the risk that insured would convert during the additional sixty-day period. 40 P.S. § 532.7. Yet if the statute is interpreted so illiberally as appellant insurer contends, then the only burden on an insurer failing to notify would to be face the risk that an insured would research the law during the additional sixty-day period and find rights that are in no way suggested by her policy, or, equally unlikely, that an insured would send an appropriate application and premium payment without firm evidence of eligibility at the time. Such a misallocation of minimal risks to the insurer and burdens on the insured could hardly have been the intent of the legislature, especially in a consumer protection statute. Jones v. Metropolitan Life Ins. Co., 156 Pa.Super. 156, 39 A.2d 721 (1944). A notice provision which in effect requires an insured to do research beyond even the fine print of her policy would be an absurd result, and it is a fundamental rule of statutory construction that the legislature does not intend an absurd result. Schaefer v. Hilton, 473 Pa. 237, 373 A.2d 1350 (1977).

It is equally well settled that a contract of insurance will, if possible, be so construed as to protect the insured and any doubt will be resolved in favor of the insured. Armstrong v. John Hancock Mutual Insurance Company, 164 Pa.Super. 507, 511, 66 A.2d 468, 470 (1949), quoting MacDonald v. Metropolitan Life Insurance Company, 304 Pa. 213, 218, 155 A. 491, 492 (1931). As the court below stated:

If we agree with the construction favored by [Northwestern], we would be giving ex-employees little protection. The conversion period would be extended, but if an ex-employee died before exercising that right, which he did not even know he possessed, his beneficiaries would be denied recover of life insurance proceeds.

We agree with the court’s reasoning. To hold otherwise would undermine the intent of the notice provision, which is to protect terminated employees.

Here, the insured died within the total 90-day period. Had she died at a later time, not within the 90 days, then our holding would be different. See McGinnis v. Bankers Life Co., 39 App.Div. 393, 334 N.Y.S.2d 270 (1972).

Accordingly, we hold that the death of an insured during the additional period provided by 40 P.S. § 532.7 gives rise to a right of payment. For these reasons, we affirm the order of the lower court.

      . See Act of May 11, 1949, P.L. 1210, § 7, 40 P.S. § 532.7.

      . Subsequently, St. Christopher’s settled with appellees and withdrew its appeal.

      . McGinnis concerned a factual situation in which an ex-employee failed to convert his group life insurance policy to an individual one within the 90-day period. New York’s conversion privilege statute is in all relevant parts identical to 40 P.S. § 532.7. See N.Y. Insurance Law § 204(3) (McKinney). No notice was given to the insured of the conversion privilege. The court held that since the insured died more than 90 days after termination, all rights under the policy had expired and the insurer was not liable to the beneficiary.


author: HOFFMAN, Judge:

text:
    436 A.2d 206
    Anthony BIANCO, Appellant, v. CONCEPTS “100”, INC. Formost Insurance Co., Garnishee.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Oct. 9, 1981.
    Petition for Allowance of Appeal Denied Jan. 26, 1982.

      Daniel L. Thistle, Philadelphia, for appellant.
    Judith B. Reap, Philadelphia, for participating party.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends in the present attachment execution proceedings that the lower court erred in concluding that it lacked jurisdiction over appellee, a foreign insurance company authorized to do business in Pennsylvania. We agree and, accordingly, reverse the order of the court below and remand for further proceedings.

I.

On January 14, 1977, appellant commenced an action in trespass against a local retail establishment and appellee’s insured, Concepts “100”, Inc. (hereinafter Concepts), a now-defunct New York corporation then doing business in Pennsylvania. Appellant alleged that he had been injured due to a defect in a hair dryer manufactured by Concepts and purchased by him in Philadelphia. Pursuant to its contractual obligation, appellee undertook Concepts’ defense, instructing its local counsel to enter an appearance and answer appellant’s complaint on Concepts’ behalf. Because of Concepts’ recalcitrance, however, appellee, relying upon a condition in its policy, withdrew its representation of Concepts and disclaimed coverage for appellant’s cause of action. Appellant obtained a $700,000 judgment against Concepts on November 5, 1979. On December 12, 1979, appellant commenced execution proceedings by filing a writ of execution and interrogatories in attachment against appellee as garnishee pursuant to Pa.R.Civ.P. 3101-3149. Appellee thereafter filed preliminary objections to the interrogatories in which it asserted, inter alia, that the courts of Pennsylvania lacked jurisdiction over it. See Pa.R.Civ.P. 3142(a), (c) (a garnishee must raise a question of jurisdiction by filing preliminary objections before entering an appearance or answering interrogatories). Appellee asserted that our courts lacked jurisdiction because it is a Michigan insurance company having no property in Pennsylvania, and because it had issued the relevant policy in New York to a New York corporation. Appellant responded that appellee had breached its contractual duty to defend and/or indemnify Concepts and, therefore, was subject to garnishment in Pennsylvania. On April 18, 1980, the lower court sustained appellee’s preliminary objection as to jurisdiction and ordered the writ of execution stricken. Appellant subsequently petitioned for reconsideration on the ground that appellee was subject to jurisdiction as a foreign insurance company authorized to do business in Pennsylvania for the last twenty-three years. On July 8, 1980, the lower court affirmed its earlier order, reasoning that although appellee was indeed subject to in personam jurisdiction, our courts lacked jurisdiction over it in the present garnishment proceedings because such proceedings are in rem in nature and appellee had no property within the territorial reach of Pennsylvania process. This appeal followed.

II.

It is well settled that garnishment, or attachment execution as it was formerly known, is a viable remedy for a judgment creditor to collect its judgment from the judgment debtor’s insurer. In Helms v. Chandler, 423 Pa. 77, 80, 223 A.2d 30, 31 (1976), our Supreme Court stated:

In a motor vehicle trespass action resulting in a judgment against an insured defendant, execution against the defendant’s insurer as garnishee has long been recognized under prior practice and under the Rules of Civil Procedure as a means of satisfying plaintiff’s judgment. The defendant insurer is a garnishee within the meaning of Rule 3101(b) defining a garnishee. Service of the writ of execution under Rule 3111 constitutes the attachment. The interrogatories under Rule 3144 are “directed to the garnishee respecting property of the defendant in his possession”. The form of interrogatories is set forth in Rule 3253. In the case of an insurer garnishee the standard form of interrogatories must be supplemented by additional appropriate interrogatories directed toward the existence of the insurance policy, the coverage and its terms.

See also Ryan v. Furey, 437 Pa. 96, 262 A.2d 305 (1969); Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Dariano v. Blocksom, 389 Pa. 96, 132 A.2d 186 (1957); Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952); Renschler v. Pizano, 329 Pa. 249, 198 A. 33 (1942); Collins v. O’Donnell, 325 Pa. 366, 191 A. 22 (1937); Zenner v. Goetz, 324 Pa. 432, 188 A. 124 (1936) ; Jennison v. Aacher, 201 Pa.Super. 583, 193 A.2d 769 (1963); Koenig v. Curran’s Restaurant & Baking Co., 121 Pa.Super. 201, 183 A. 451 (1936); Shaffer v. Hebenstreit, 119 Pa.Super. 159, 180 A. 725 (1935); Johnson v. Hermann, 101 Pa.Super. 198 (1930); Bank of New Bethlehem ex rel. Maikranz v. Maikranz, 44 Pa.Super. 225 (1910). See generally 1 A. Goldin, The Law of Insurance in Pennsylvania, ¶ 644 (2d ed. 1946); 9 Goodrich-Amram 2d § 3111(b):3.4 (1977); 18 G. Couch, Insurance 2d §§ 74:83 to 74:114 (1968). The insurer’s liability qua garnishee is based upon its breach of the insurance contract with the judgment debtor, Ryan v. Furey, supra, 437 Pa. at 103, 262 A.2d at 309, and the attachment execution operates as an equitable assignment to the judgment creditor of the judgment debtor’s claim against the garnishee. See Boyd Estate, 394 Pa. 225, 242, 146 A.2d 816, 824 (1959); Tremont Township School District v. Western Anthracite Coal Co., 381 Pa. 276, 281, 113 A.2d 234, 237 (1955); Goldstein v. Penny, 328 Pa. 78, 79 80, 195 A. 27, 28 (1937) ; Mignatti v. General Mortgage Financing Corp., 325 Pa. 113, 116,189 A. 296, 297 (1937); Joseph Melnick Building & Loan Assoc., v. Melnick, 318 Pa. 120, 122, 178 A. 144, 145 (1935); Aarons v. Public Service Building & Loan Assoc., 318 Pa. 113, 117, 178 A. 141, 142 (1935); Wheatcroft v. Smith, 239 Pa.Super. 27, 32, 362 A.2d 416, 419 (1976) (plurality opinion); Folmar v. Shaffer, 232 Pa.Super. 22, 24 25, 332 A.2d 821, 823 (1974); Trainer Estate, 166 Pa.Super. 472, 475, 71 A.2d 833, 834 (1950); LaBarre v. Doney, 53 Pa.Super. 435, 438 (1913); Almi, Inc. v. Dick Corp., 31 Pa.Cmwlth. 26, 34, 35-36, 375 A.2d 1343, 1348, 1349 (1977).

[A]s to the [garnishee, attachment execution] is the beginning of a new proceeding. By it this garnishee [is] brought into a court having complete jurisdiction to determine what, if anything, it owed to the defendant upon its policy of insurance. When thus brought into court it possessed every right of defense that it would have had to a common-law action brought by the assured directly on the policy. True, the proceeding was not instituted by the assured in person but by one who had become clothed, by force [of law], with every right which the assured himself could assert.

Bank of New Bethlehem ex rel. Maikranz v. Maikranz, supra at 227. This remedy has, historically, been extended to reach foreign insurers doing business, or authorized to do business, in the Commonwealth. See id. at 227-28. See also Werron v. Metropolitan Life Ins. Co., 166 Pa. 112, 30 A. 1008 (1895); Kennedy v. Agricultural Ins. Co. of Watertown, 165 Pa. 179, 30 A. 724 (1895); Barr ex rel. Berst v. King, 96 Pa. (15 Norris) 485 (1880). However, merely to acknowledge the existence of the remedy does not answer the question before us, namely whether the lower court erred in concluding that it lacked jurisdiction over appellee. To that question we now turn.

III.

The lower court’s conclusion that it lacked jurisdiction over appellee necessarily depended upon its determination that garnishment proceedings against insurance companies are in rem in nature. Our Supreme Court recognized that post-judgment garnishment proceedings are not wholly in rem:

“It is true that the attachment process in a proceeding in rem, but it is equally true that it is something more. It is also a proceeding against the garnishee personally, for the purpose of compelling him to answer for the value where the thing itself is not produced. The summons, the judgment, and execution contain the bones and sinews of a proceeding in personam against the garnishee.” From this it is clear that the execution attachment is not solely a proceeding in rem.

Breading v. Siegworth, 29 Pa. (5 Casey) 396, 399 (1857), quoting Childs & Co. v. Digby, 24 Pa. (12 Harris) 23, 26 (1854). Accord, Koenig v. Curran’s Restaurant & Baking Co., supra, 121 Pa.Super. at 207, 183 A. at 453; Bank of New Bethlehem ex rel. Maikranz v. Maikranz, supra at 227. The issues presented in such proceedings and the intangible nature of the garnishable res further demonstrate that post-judgment garnishment of an insurer is a species of in personam actions. Because a judgment creditor necessarily claims through his judgment debtor, garnishment becomes a “lawsuit within a lawsuit,” 9 Goodrich-Amram 2d § 3144(a) :1 (1977), wherein the judgment creditor must establish the existence of: (1) his judgment, which operates as the assignment to him of the judgment debtor’s claims, see, e. g., Ryan v. Furey, supra; Boyd Estate, supra; Goldstein v. Penny, supra; Trainer Estate, supra; and (2) the insurer’s obligation to the judgment debtor, see Wheatcroft v. Smith, supra, by proving the existence of the policy providing liability coverage for his claim, see, e. g., Ryan v. Furey, supra, and its value, Vrabel v. Scholler, supra 369 Pa. at 244, 85 A.2d at 862. If the insurer relies upon an exclusion or a breach of a condition as a defense, it bears the burden of establishing that defense. See, e. g., Ryan v. Furey, supra (exclusion); Jennison v. Aacher, supra (breach of condition as to cooperation by insured); Shaffer v. Hebenstreit, supra (exclusion). Moreover, because the garnishable res is a contractual duty to defend and/or indemnify, it is an intangible asset of the judgment debtor which may be garnished only when the garnishee is subject to in personam jurisdiction. The Judicial Code states:

The tribunals of this Commonwealth shall have jurisdiction over obligations owed by persons who are subject to the jurisdiction of the tribunals of this Commonwealth whether or not the persons to whom the obligations are owed are subject to the jurisdiction of the tribunals of this Commonwealth.

42 Pa.C.S.A. § 5306 (emphasis added). See Wiener v. American Insurance Co. of Boston, 224 Pa. 292, 297, 73 A. 443, 445 (1909); Kennedy v. Agricultural Ins. Co. of Watertown, supra; Barr ex rel. Berst v. King, supra; Fithian v. New York & Erie Railroad Co., 31 Pa. (7 Casey) 114, 116 (1857); Rex v. Paramount Rubber Co. of New Jersey, 110 Pa.Super. 536, 538-39, 168 A. 366, 367-368 (1933); Falk Co. v. American Railway Express Co., 79 Pa.Super. 99, 101-02 (1922); Wiener v. American Insurance Co. of Boston, 39 Pa.Super. 219, 223-24 (1909). See also 18 G. Couch, supra § 74:84 (“With respect to jurisdiction over the insurer as garnishee, the criteria is the presence of the insurer within the state, making it amenable to the service of process, or the existence of an appointed or statutory agent qualified or authorized to receive service of process.”) (footnote omitted). Accordingly, we hold that the lower court erred in applying principles of in rem jurisdiction.

IV.

Holding that the lower court improperly applied in rem standards does not end our jurisdictional inquiry, however. The lower court held, upon appellant’s petition for reconsideration, that appellee would have been subject to in person-am jurisdiction. Although our analysis of that issue is somewhat different from that of the lower court, we do agree that appellee would, indeed, be subject to in personam jurisdiction, and that assertion of jurisdiction would not offend due process.

Section 5301 of the Judicial Code provides, in pertinent part:

(a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise jurisdiction over such person . . . and to enable such tribunals to render personal orders against such person . . .:
(2) Corporations.—
(i) Incorporation under or qualification as a foreign corporation under the laws of the Commonwealth.
(ii) Consent, to the extent authorized by the consent.
(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.
(b) Scope of jurisdiction.— When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section. Discontinuance of the acts enumerated in subsection (a)(2)(i) and (iii) and (a)(3)(i) and (iii) shall not affect jurisdiction with respect to any act, transaction or omission occurring during the period such status existed.

42 Pa.C.S.A. § 5301(a)(2), (b) (emphasis added). The Act of May 17, 1921, P.L. 682, art. III, § 301, 40 P.S. § 421, establishes the criteria upon which foreign insurance companies become authorized to do business within the Commonwealth:

Requisites for foreign companies to do business
No stock or mutual insurance company or association of any other State or foreign government shall be admitted and authorized to do business until:
(a) It has filed with the Insurance Commissioner a certified copy of its charter or deed of settlement, a statement of its financial condition and business, signed and sworn to by its proper officers, and copies of forms of all policies it proposes to issue in this Commonwealth, with such other information as he may require.
(b) It has satisfied the Insurance Commissioner that it is fully and legally organized under the laws of its State or government to do the business it proposes to transact. That it has, if a stock company, the requisite amount of capital fully paid up and unimpaired.
(c) It shall, by a duly executed instrument filed in his office, constitute and appoint the Insurance Commissioner or his successor its true and lawful attorney, upon whom all lawful processes in any action, rule, order, or legal proceeding against it may be served; and therein shall agree that any lawful process against it which may be served upon him as its said attorney shall be of the same force and validity as if served on the company, and that the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this Commonwealth.
(d) It shall file in the office of the Auditor General a statement showing: (I) The name of the company or association; (II) the date of incorporation or organization; (III) the act of Assembly or authority under which incorporated or organized; (IV) the place of business; (V) the post office address and names of the president, secretary, and treasurer; (VI) the amount of capital authorized by its charter; and (VII) the amount of capital paid into the treasury of the company.
Any company or association which shall neglect or refuse to file such statement shall be subject to a penalty of five hundred dollars ($500.00), which penalty shall be collected, on an account settled by the Auditor General and State Treasurer, in the same manner as taxes on stock are settled and collected.

When read together, these statutory provisions codify the principle that a foreign insurance corporation upon obtaining a certificate of authority to conduct its insurance business in the Commonwealth voluntarily subjects itself to the jurisdiction of our courts for “any cause of action [which] may be asserted against [it], whether or not arising from [the] acts enumerated in . . . section [5301(a)],” 42 Pa.C.S.A. § 5301(b). See generally 2 G. Couch, supra § 21:88; 1 A. Goldin, supra ¶ 149. Earlier versions of these statutes have been invoked to sustain post-judgment garnishment procedures against authorized foreign insurers, See, c. g., Werron v. Metropolitan Life Ins. Co., supra; Kennedy v. Agricultural Ins. Co. of Watertown, supra; Barr ex rel. Berst v. King, supra; Bank of New Bethlehem ex rel. Maikranz v. Maikranz, supra. Cf. Fithian v. New York & Erie Railroad Co., supra (foreign railroad corporation which accepted privilege of extending its lines through Pennsylvania and complied with statute requiring it to maintain an agent to accept service of process upon it here could be garnished for a debt owing to garnishor’s judgment debtor). Appellant established that appellee had been authorized to do business here for the last twenty-three years. Consequently, appellee falls within the reach of Pennsylvania’s jurisdictional statutes.

Section 5308 of the Judicial Code provides: “The tribunals of this Commonwealth may exercise jurisdiction under this subchapter [sections 5301 to 5308] only where the contact with this Commonwealth is sufficient under the Constitution of the United States.” 42 Pa.C.S.A. § 5308. Cf. Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 291 Pa.Super. 96, 99, 435 A.2d 585, 587 (1981) (opinion upon reconsideration) (jurisdiction predicated upon long-arm statute subject to limitation of due process clause of Fourteenth Amendment to the Federal Constitution); Koenig v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL—CIO, 284 Pa.Super. 558, 567, 426 A.2d 635, 639 (1980). A state may constitutionally impose conditions upon foreign corporations seeking authorization to act in that state. In Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (1917), the United States Supreme Court upheld a Missouri statute subjecting an authorized foreign insurer to the jurisdiction of its courts on a cause of action arising from a policy issued in Colorado to an Arizona corporation and insuring its property located in Colorado. The Court reasoned that the foreign insurer had consented to Missouri’s assertion of jurisdiction by voluntarily complying with its statutes establishing the requirements to do business in Missouri. Id. at 95, 37 S.Ct. at 345, 61 L.Ed. at 616. Accord, Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 175, 60 S.Ct. 153, 158, 84 L.Ed. 167, 174 (1939); Louisville & Nashville Railroad Co. v. Chatters, 279 U.S. 320, 325, 49 S.Ct. 329, 330, 73 L.Ed. 711, 716 (1929); Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213, 216, 42 S.Ct. 84, 85, 66 L.Ed. 201, 203 (1921); Ex Parte Schollenberger, 96 U.S. 369, 375-78, 24 L.Ed. 853, 854-55 (1878) (considering then-current Pennsylvania insurance statute); Lafayette Insurance Co. v. French, 59 U.S. (18 How.) 404, 407-09, 15 L.Ed. 451, 452-53 (1856). See generally 18 G. Couch, supra § 21:88. Accordingly, we conclude that assertion of in personam jurisdiction over appellee as an incident to its authorization to do business in Pennsylvania would not violate due process. Cf. Kennedy v. Agricultural Ins. Co., supra; Barr ex rel. Berst v. King, supra (upholding prior versions of authorization statutes in context of attachment execution proceedings against foreign insurance companies).

Because we have concluded that appellee is indeed subject to in personam jurisdiction, we reverse the order of the lower court and remand for proceedings consistent with this opinion.

      . During all relevant times, appellee was Concepts’ products liability insurer pursuant to a policy which provided coverage of $500,000.

      . The lower court concluded that appellee had neither contracted to insure a risk in Pennsylvania at the time of contracting, see 42 Pa.C.S.A. § 5322(a)(6), nor had it possessed the requisite minimum contact with the forum state to make the exercise of jurisdiction reasonable, see id. § 5322(b); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974).

      . Because the lower court held that it lacked jurisdiction, it had no occasion to address appellee’s remaining preliminary objections. Because we conclude that appellee is subject to garnishment in Pennsylvania, we reverse the lower court. On remand, the lower court should first entertain appellee’s remaining preliminary objections.

      . It is appropriate, at this juncture, to distinguish pre-judgment garnishments or attachments which are utilized as a justification for the assertion of quasi in rem jurisdiction. See Pa.R.Civ.P. 2151-2179 (held unconstitutional in Jonnet v. Dollar Savings Bank of New York, 530 F.2d 1123 (3d Cir. 1976); Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977) (applying Jonnet retroactively)). Such procedures have been recognized as a vehicle for coercing nonresidents to defend causes of action in the forum state or risk the loss of their property located there. See Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Such assertions of jurisdiction are now governed by the same principles of “minimum contacts,” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), as govern in personam proceedings against defendants who cannot be found within the forum state. See Shaffer v. Heitner, supra 433 U.S. at 212, 97 S.Ct. at 2584, 53 L.Ed.2d at 703.
      We note, additionally, that because the present case does not rely upon appellee’s presence in the forum state to sustain the cause of action against Concepts, appellee’s reliance upon Rush v. Savchuk, supra, is totally inapposite.

      . As analyzed by the parties and decided in the court below, this case arguably involved various portions of the long-arm statute, 42 Pa.C. S.A. § 5322(a)(6)(i), (a)(9), (b), and (c). For a thorough analysis and application of our long-arm statute, see, e. g., Kingsley & Keith (Canada) Ltd. v. Mercer, International Corp., 291 Pa.Super. 96, 435 A.2d 585 (1981) (opinion upon reconsideration); Koenig v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,

        Forgers & Helpers, AFL-CIO, 284 Pa.Super. 558, 426 A.2d 635 (1980); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra.

      . See Gilbert v. Korvette’s, Inc., 457 Pa. 602, 604 & n.4, 327 A.2d 94, 96 & n.4 (1974) (an appellate court “may . .. affirm if any ground for affirmance exists”); Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., 285 Pa.Super. 13, 18 n.3, 426 A.2d 680, 682 n.3 (1981) (allocatur granted May 6, 1981).


text:
    436 A.2d 212
    William O’CALLAGHAN, Individually and as Guardian ad Litem for Maureen O’Callaghan, a minor, and Elizabeth O’Callaghan v. Frank WEITZMAN and N. Carl Schwartz. Appeal of N. Carl SCHWARTZ.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Oct. 16, 1981.

      Barney B. Welsh, Philadelphia, for appellant.
    George Gershenfeld, Philadelphia, for O’Callaghan, appellees.
    Mitchel H. Kievan, Philadelphia, did not submit a brief on behalf of Weitzman, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellees brought this action against appellant alleging fraud and legal malpractice arising from the settlement of a vehicular negligence accident in New Jersey. Following the lower court’s granting of appellant’s motion for compulsory nonsuit, appellees petitioned for a new trial. The lower court granted appellees’ petition in part, awarding a new trial on the issue of fraud only. Appellant took this appeal alleging the lower court erred in granting the new trial. We disagree and, accordingly, affirm the order of the lower court.

In reviewing the propriety of the lower court’s actions, we note that a nonsuit may only be entered where the facts and circumstances lead unerringly to but one conclusion. A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980); McNett v. Briggs, 217 Pa.Super. 322, 272 A.2d 202 (1970). “It is hornbook law that a judgment of nonsuit can be entered only in clear cases and before it may be entered the plaintiff must be given the benefit of all reasonable inferences of fact arising therefrom; and all conflicts in the evidence must be resolved in its favor.” Tolbert v. Gillette, 438 Pa. 63, 65, 260 A.2d 463, 464-65 (1970) (citations omitted). So viewed, the facts are as follows.

Appellees, William and Elizabeth O’Callaghan and their infant daughter Maureen, were injured in an automobile accident on November 16, 1957, in Bayonne, New Jersey. Subsequently, they retained Frank Weitzman, Esquire, to represent them in an action to recover damages from the other driver involved in the accident. Weitzman soon found it necessary to engage the services of appellant, an attorney with whom he shared offices. Appellant, in turn, engaged Raymond Kassekert, Esquire, a member of the New Jersey bar, to institute suit against the other driver, a resident of New Jersey. Kassekert attempted to commence an action on behalf of the appellees on December 1, 1959, only to learn that the statute of limitations had already run as to the claims of the adult appellees. Kassekert promptly alerted appellant and his own professional malpractice insurer as to his error. Despite having no authority to represent appellees in the malpractice claim, appellant negotiated with Kassekert’s insurer and procured a $9,000 settlement offer for appellees. Appellees, having no idea that the settlement offer was for anything other than the original automobile accident, accepted the offer. Appellant received the $9,000 check from Kassekert’s insurer, deducted his forty percent contingent fee, and gave appellees his personal check for the balance. Appellant never disclosed the true nature of the settlement he had obtained. In 1973, appellees first learned of the actual disposition of their earlier action, and subsequently brought this action against appellant and Weitzman, alleging legal malpractice and fraud.

Appellant contends that the trial court erred in granting appellees a new trial when their evidence was inconsistent and contradictory as to fraud, and nonexistent as to damages. The grant of a new trial is within the sound discretion of the trial court and will not be reversed absent a palpable abuse of discretion. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 288-89, 265 A.2d 516, 517-18 (1970). “Fraud is composed of a misrepresentation fraudulently uttered with the intent to induce the action undertaken in reliance upon it to the damage of its victim.” Thomas v. Seaman, 451 Pa. 347, 350-51, 304 A.2d 134, 136-37 (1973). It is well settled that “the deliberate nondisclosure of a material fact amounts to a culpable misrepresentation no less than does an intentional affirmation of a material falsity.” Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 450-52, 51 A.2d 759, 764 (1947). “A party who relies on [a theory of] fraud to establish a claim has the burden of proving by clear and convincing evidence the facts upon which the alleged fraud is based.” Laughlin v. McConnel, 201 Pa.Super. 180, 183 -84, 191 A.2d 921, 923-24 (1963). The evidence must be sufficient to “enable the jury to come to a clear conviction, without hesitating, of the truth of the precise facts in issue.” Aliquippa National Bank v. Harvey, 340 Pa. 223, 231-32, 16 A.2d 409, 413-14 (1940). Appellant argues first that the evidence presented by appellees is so inconsistent and contradictory as to be insufficient to establish fraud as a matter of law. While we note several variances on inessential aspects of their case, appellees’ evidence with respect to the essential elements of the fraud allegation is consistent and sufficient to warrant submission of the issue to a jury. Appellant failed to inform appellees of the true nature of the settlement agreement. The purpose of this omission was to induce appellees to accept the settlement offer and unknowingly forgo any possible malpractice claim against appellant while still permitting appellant to collect a sizeable fee. Appellees relied upon appellant’s misrepresentation and accepted the settlement offer without ever knowing the true source of the payments. Thus, we are satisfied that a jury could come to a clear conclusion that appellant had perpetrated a fraud upon appellees in obtaining the settlement.

Appellant argues next that appellees suffered no damage as a result of the alleged fraud. We disagree. As a result of appellant’s misrepresentation, appellees lost the opportunity to present their original claim in court; they lost the opportunity to be compensated for the medical bills of their daughter, Maureen; and, foremost, they were denied the opportunity to have a disinterested advocate pursue their malpractice claim against Kassekert. It is clear that a jury could find these losses to be compensable in an action for fraud. Accordingly, we cannot find that the lower court erred in granting appellees’ motion for a new trial on the issue of fraud.

Order affirmed.

      . We note that the proper procedure would have been to petition to remove the compulsory nonsuit. See Pa.R.Civ.P. 227.1. However, because the trial court treated appellees’ motion for a new trial as a petition to remove the nonsuit, and appellant has failed to object, we shall ignore any procedural defect.

      . Appellees have not appealed from the order of the lower court denying them a new trial on the issue of malpractice.

      . See Pa.RA.P. 311(a)(5) (orders granting new trials are appealable).

      . Appellant was an experienced personal injury attorney residing in New Jersey and practicing in Pennsylvania.

      . Under New Jersey law, the statute of limitations on the minor’s claim was tolled until she reached the age of majority.

      . Although Weitzman has also appealed, he has not submitted a brief. Consequently, we quash his appeal. See Pa.R.A.P. 2188.


author: SPAETH, Judge: MONTGOMERY, Judge,

text:
    436 A.2d 215
    Barbara PUGAR v. Dominic GRECO, Appellant, v. Ina BRUNWASSER.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1981.
    Filed Oct. 23, 1981.

      John M. Silvestri, Pittsburgh, for appellant.
    Allen N. Brunwasser, Pittsburgh, for appellees.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a motion to quash an appeal from compulsory arbitration. We affirm.

This case has an extensive and unusual procedural history, which we must review in order to define the issue now before us.

On June 25, 1976, an automobile owned by appellee Barbara Pugar and driven by appellee Ina Brunwasser was involved in an accident with an automobile driven by appellant Dominic Greco. Pugar filed suit against Greco, claiming damages to her automobile of $127.40. Greco joined Brunwasser as an additional defendant. The case was referred to compulsory arbitration, and on both claims—Pu-gar’s against Greco, and Greco’s against Brunwasser—the arbitrators found in favor of Greco. The arbitrators’ award was docketed on January 11, 1977.

Pugar and Brunwasser did not perfect an appeal from the arbitrators’ award. Instead, within the 20 day period then allowed for perfecting an appeal, they filed a motion with the lower court for permission to appeal without payment of additional costs. They claimed that in a case involving only $127.40, the requirement that in order to perfect their appeal they had to pay a $60 non-returnable arbitration fee chilled their constitutional right to a jury trial. The lower court denied this motion by an order dated January 28, 1977, but not docketed until February 1st. Pugar and Brunwasser appealed that order to this court. We granted Greco’s motion to quash the appeal as interlocutory. On allocatur, the Supreme Court affirmed our order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).

Within 20 days of the Supreme Court’s decision, Pugar and Brunwasser paid the $60 arbitration fee and perfected their appeal from the arbitrators’ award. Greco moved to quash the appeal as untimely. He argued to the lower court, as he does to us, that Pugar’s and Brunwasser’s original motion to the lower court—their motion for permission to appeal from the arbitrators’ award without payment of the additional costs—did not operate to toll or extend the period for perfecting an appeal from an arbitration award, and that therefore the award had become final and unappealable. The lower court denied the motion to quash, and Greco filed this appeal.

The lower court said that it denied Greco’s motion to quash because it understood the Supreme Court’s opinion in Pugar v. Greco, supra, to say that if Pugar and Brunwasser paid the disputed fee, they could file an appeal from the arbitrators’ award and have a jury trial. We agree with the lower court’s understanding of the Supreme Court’s opinion. The critical part of that opinion said:

Appellants [Pugar and Brunwasser] are not “out of court,” either on the merits of the automobile accident claim or on the right to the jury trial question. Upon payment of the fee and costs appellants’ appeal from the adverse arbitrators’ award will proceed in the customary manner. If they or either of them should not succeed in that de novo trial, the alleged error in requiring the payment of the $60 fee as a condition of the ability to have a jury trial can be raised on appeal in the normal course, along with any other assignments of error.
Pugar v. Greco, supra, 483 Pa. at 74, 394 A.2d at 545 (emphasis added).

This is a specific description—a roadmap—of the course this case should follow. If we accepted appellant’s argument that by failing to appeal from the arbitrators’ award within 20 days Pugar and Brunwasser had forever lost their right to appeal, we should have to hold that this case had already become moot when the Supreme Court heard it and filed its opinion with the instructions we have just quoted.

Our duty, like that of the lower court, is to try to understand and follow the directions of the Supreme Court. However, we do not reach the result we do only because we believe it is required by the Supreme Court’s opinion; even without the guidance of that opinion we should reach the same result.

It is true that the general rule is that requesting reconsideration or some other form of relief—and that is what Pugar’s and Brunwasser’s motion for permission to appeal from the arbitrators’ award without payment of additional costs represented—does not provide additional time for perfecting an appeal; the clock continues to run. See, e. g., Pa.R.A.P. 1701(b)(3). However, this rule is inapplicable here, for here Pugar’s and Brunwasser’s motion did not challenge an order of the lower court per se but instead, challenged the very appeal procedure itself.

The relevant paragraphs of appellees’ motion were as follows:

15. That in order to take the appeal [from the arbitrators’ award] your petitioners will be required to pay $60.00 arbitration fee which is not recoverable in the event the verdict of the arbitrators is reversed and will also be required to pay a jury fee and docketing costs.
16. That, as a result, the costs advanced in order to process the case are almost equal to the amount involved $127.40.
17. That to require the payment of $60.00, nonreturnable arbitration fee, in order to process to a jury trial or to a Judge trial a case involving $127.40 is a violation of due process of law and also an affirmative discouragement of the right to trial by jury as defined by Article 1, Section 6 of the Pennsylvania Constitution.
Stated another way, the costs in this case will deprive your petitioners of the right to a trial by jury or even the right to have the matter heard by a Judge and thus will make unavailable the constitutional right to have the court open for the redress of grievances.

This motion was filed within 20 days of the arbitrators’ award and was therefore timely. It squarely raised the issue of whether the non-returnable fee requirement incident to an appeal from compulsory arbitration impermissibly burdens the right to a jury trial provided by the Pennsylvania Constitution. In every respect except in name it was equivalent to an appeal.

Of course, in retrospect it may be said that instead of filing their motion for permission to appeal from the arbitrators’ award without payment of additional costs, Pugar and Brunwasser should have paid the $60 fee. However, their decision not to pay the fee but instead to file their motion was based on the belief that once they paid the fee, they would forever lose their ability to challenge its constitutionality. We now know they were wrong, because the Supreme Court has told us so. Pugar v. Greco, supra, 483 Pa. at 74, 394 A.2d at 545. Nevertheless, their belief was not only reasonable but supported by authority. “Numerous cases hold that one who invokes, or acquiesces in, an unconstitutional enactment or proceeding is barred from asserting its invalidity; [citations omitted].” Montgomery County Bar Association v. Rinalducci, 329 Pa. 296, 298, 197 A. 924, 926 (1938).

Greco argues that Pugar and Brunwasser could and therefore should have appealed to this court within the 20 day period for appealing from the arbitrators’ award and thereby have stopped the clock. This argument is without merit. Even if such an appeal would have stopped the clock, Pugar and Brunwasser could not have filed it. The lower court’s order denying their motion for permission to appeal the arbitrators’ award without payment of additional costs was not docketed until after the 20 day period had expired. The fact that the court’s order was dated within the 20 day period is immaterial; an appeal from an order may not be taken until the order has been docketed. Pa.R.A.P. 301(a).

The merits of Pugar’s and Brunwasser’s challenge to the constitutionality of the requirement that they pay a $60 non-returnable fee in order to perfect an appeal from compulsory arbitration are not before us, and it would be improper to suggest how we should decide the case if the merits were before us. However, our discussion so far implies the conclusion that the challenge is not frivolous. If we thought the challenge frivolous, we should have been sorely tempted to quash the appeal, just to end the matter, instead of threading our way through its procedural complexities. After all, twice to this court and once to the Supreme Court for a case involving $127.40 seems a bit much. However, instead of being frivolous, Pugar’s and Brunwasser’s appeal raises an issue that is of some importance to the system of compulsory arbitration and should be decided.

The Arbitration Act of 1836, 5 P.S. § 1 et seq. (repealed), provided that either party to a civil action could “enter . . . a rule of reference, wherein he . . . declarefd] his determination to have arbitrators chosen. . . . ” Id. at 21. However, it was not until the Arbitration Act of 1952, Act of January 14, 1952, P.L. (1951) 2087, amended the Act of 1836 that courts of common pleas were permitted by local rule to require arbitration, even if both parties wanted the case to be heard by the court, in cases where the amount in controversy was less than a certain figure—then set at $1000. 5 P.S. § 30 (repealed). The Act of 1952 also provided that while there was an absolute right of appeal, with a trial de novo in the court of common pleas, a condition of the appeal was repayment to the county of the arbitrators’ fees.

The Act of 1952 was challenged by a resident of Lancaster County who was the plaintiff in a trespass action that had already been listed for jury trial at the time the Court of Common Pleas of Lancaster County adopted a rule of court providing for compulsory arbitration. The amount involved in the action was $249.19, and the plaintiff’s major objection to the Act of 1952 was the same as Pugar’s and Brunwasser’s objection here—that the requirement that he repay the arbitrators’ fees impermissibly burdened his right to have his case decided by a jury. Under the Lancaster County rule the arbitrators’ fee was $75.

The case came before the Supreme Court on a petition for a writ of prohibition, asking the Court to forbid the Lancaster County Court from putting its rule in effect. The Court held that “the necessity of paying that amount [the arbitrators’ fee of $75] as a condition for the right to appeal would seemingly operate as a strong deterrent, amounting practically to a denial of [the right to a jury trial], if the case should involve ... as little as $250.” Smith Case, 381 Pa. 223, 232, 112 A.2d 625, 630, appeal dismissed, 350 U.S. 858, 76 S.Ct. 105, 100 L.Ed. 762 (1955). However, rather than granting the relief requested and invalidating the entire procedure for compulsory arbitration, the Court directed that the Lancaster County rule be amended to provide for a lower rate of compensation for the arbitrators when only a small amount was involved. In a footnote the Court suggested that another solution would be for the Legislature to amend the Arbitration Act so that when only a small amount was involved, the appellant would not be required to repay the entire amount. The following year the Legislature did amend the Act to provide that the required repayment not exceed 50% of the amount in controversy. Act of March 15, 1956, P.L. (1955) 1279, § 1.

Here, the $60 fee required is just under 50% of the amount in controversy—$127.40. While the question of whether the 1956 amendment limiting the repayment requirement to 50% of the amount in controversy cures the constitutional problem acknowledged by the Supreme Court in Smith is not before us, as we have already mentioned, it may be noted that the $75 fee that the Court said “would seemingly” chill the right to a jury trial in a case involving $250 was only 31% of the amount in controversy. See also Stein Enterprises, Inc. v. Golla, 493 Pa. 503, 426 A.2d 1129 (1981) (arbitrator’s fees are “cost of suit” within meaning of statute allowing relief to party unable to pay “by reason of poverty;” Noyes v. Brooks, 174 Pa. 632, 34 A. 285, 34 A. 450 (1896), overruled).

We therefore conclude that the order of the lower court should be affirmed, and Greco’s motion to quash denied, so that Pugar and Brunwasser may proceed with their appeal and trial de novo, and in due course, as contemplated by the Supreme Court, present their constitutional argument.

So ordered.

MONTGOMERY, J., files a dissenting opinion.

MONTGOMERY, Judge,

dissenting:

I most strongly dissent. I do not believe that the Appellees should be permitted to perfect an appeal at this late date from the award of the arbitrators. I believe that it is clear that a party may not avoid the statutory time limits provided for such an appeal by the mere filing of a separate appeal from a clearly interlocutory order.

There are numerous cases holding to the general rule that proceedings subsequent to a final judgment or order do not toll the running of the statutory time within which an appeal must be taken. See In Re Hanna’s Estate, 367 Pa. 337, 80 A.2d 740 (1951), in which the Supreme Court cites a multitude of cases, involving various situations, and all holding that the time for an appeal is not extended because of post-judgment or post-decree requests for relief by a party who thereafter seeks to appeal in an untimely manner. The cases cited by the Supreme Court in In Re Hanna’s Estate may be directly analogized to the situation presented in the instant case. Our own Court has stated that statutes limiting the time during which appeals may be taken in judicial proceedings are mandatory in our courts. See Lima Building Stone Quarry, Inc. v. Commonwealth of Pennsylvania, 205 Pa.Super. 365, 208 A.2d 884 (1965), and cases cited therein.

The Majority makes much of the fact that the order of the lower court, denying the Appellees the right to appeal without payment of the arbitrators’ fee, was not docketed until one day after the statutory period for taking such an appeal had expired. Such fact, in my view, was of no consequence, and certainly provided no legal basis for extending the period for filing an appeal from the decision of the arbitrators. If the lower court had granted the requested relief, the Appellees could certainly have made appropriate application for the refund of the arbitrators’ fee which may have been paid, but in any event, the appeal would have had to have been timely filed. The lower court’s denial of the requested relief similarly did not operate to extend the time for an appeal to be filed. I find nothing in the record to suggest that the Appellees were prevented from asking the lower court to allow them to appeal nunc pro tunc, because of the time sequence which evolved in the docketing of the court’s order one day after the final date for filing of an appeal. Further, nothing would have inhibited the Appellees from filing their appeal, with the payment of the costs, including the arbitrators’ fee, while simultaneously filing a motion or petition protesting the latter charge and seeking a refund. There clearly could not have been a finding of a waiver of the issue in such circumstances, especially since the original motion regarding the costs matter was previously filed and then still pending before the court.

Instead of taking such action the Appellees appealed from a clearly interlocutory order, both to our Court and to the Supreme Court, causing a delay of four years in all proceedings. One could not envision a more clear example of an abuse of procedure, nor devise a more dilatory tactic to frustrate the expeditious and orderly disposition of the litigation. I cannot join the Majority in furthering such injustice by now granting the Appellees an opportunity to perfect an appeal from the arbitrators’ award. Moreover, in view of the blatantly dilatory conduct of the Appellees, I would impose on them all costs incurred by the Appellant in the process of the appeals from the interlocutory order, including attorney fees.

      . The appeal is interlocutory. However, Greco’s claim that the requirements for perfecting an appeal from arbitration were not complied with raises a question of jurisdiction. James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975); Drozdowski v. Keystone Truck Leasing Co., 277 Pa.Super. 55, 419 A.2d 657 (1980). The Act of March 5, 1925, P.L. 23, § 1, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1069], effective June 27, 1980, permitted an interlocutory appeal of a lower court determination of jurisdiction. Since this appeal was filed on May 6, 1980, before the effective date of the repeal of the Act of 1925, it is properly before us.

      . The Arbitration Act of 1836, as amended, was repealed by the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, § 2a. Compulsory arbitration is now provided for by 42 Pa.C.S.A. § 7361 and governed by Pa.R.C.P. 1301-1314.

      . The requirement that the compensation of the arbitrators up to 50% of the amount in controversy be repaid as a condition of appeal and not be taxed as costs or otherwise recovered is carried forward in the rules of civil procedure now governing arbitration. Pa.R.C.P. 1308(a)(2).

      . The Appellees presented the petition concerning costs on a Friday, only three days prior to the expiration of the statutory period for the filing of the appeal from arbitration.

      . It cannot be ignored that the Appellee’s motion did not claim that they could not afford to pay the arbitrator’s fee, but merely that the requirement for such payment violated their Constitutional rights.

      . I do not read the Supreme Court decision in this case as holding that the Appellees had further appeal rights after their appeal from the interlocutory order was quashed. The Supreme Court spoke in general terms in explaining what an appellant could do in similar circumstances, if an appeal on the merits was perfected within the statutory time limits.