text:
    Commonwealth v. Missimer, Appellant.

      Criminal law — Conspiracy—Improper remarks of district attorney — • Comment on failure of defendants to testify.

    Where on the trial of several defendants for conspiracy, the district attorney says to the jury that only two of the defendants had taken the witness stand, and one of the defendants who was acquitted objects to the remark, and requests that a juror be withdrawn, and the request is refused, and none of the other defendants make any such objection or request, the two defendants who went upon the stand and were convicted cannot, upon appeal, complain of the words of the district attorney, or of the action of the court in refusing to withdraw a juror and continue the case.
    Argued April 19, 1909.
    Appeal, No. 250, Oct. T., 1908,.by defendant, from judgment of Q. S. Phila. Co., Feb. T., 1908, No. 288, on verdict of guilty in case of Commonwealth v. Horace H. Missimer et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Indictment for conspiracy. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court. See Commonwealth v. Donnelly, 40 Pa. Superior Ct. 116.
    ’ Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were various rulings and instructions set forth in the opinion of the Superior Court.

      July 14, 1909:

      A. H. Hendricks, Thad. S. Krause and Michael J. Ryan, for appellant.

      William A. Gray, with him John H. Maurer, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee.
   Opinion by

Morrison, J.,

This is the separate appeal of one of the defendants, Horace H. Missimer, in Commonwealth v. Wm. H. Donnelly et al., in which we have this day filed an opinion at No. 249, October Term, 1908, 40 Pa. Superior Ct. 116.

This appellant is one of the convicted defendants who participated in the alleged illegal and exorbitant lease from the Pennsylvania Graphite Company of certain land in Chester county and the leasing of other land in the same county owned by the appellant, Donnelly and others, to the United States Graphite Company, upon terms and for considerations alleged to have been excessive and exorbitant. This appellant became director of the latter company and he was present and participated in declaring several of the alleged illegal dividends and he received his share of the 125,340 shares of stock alleged to have been unlawfully divided among the defendants who were found guilty by the jury. As we said in the opinion in Donnelly’s appeal, in regard to Donnelly, this appellant was an officer and an active man in the alleged conspiracy. The opinion in the Donnelly appeal is intended to and does apply with pertinence to the present appeal, with the one exception, that Missimer did not testify, and if the district attorney used the language complained of in the fourteenth assignment of error, Missimer might have put himself in a position to have that language reviewed. If the district attorney had said, ‘ ‘ Two of the defendants took the stand,” no fault could be found with that language. But it is alleged that he said, “ That only two of the defendants took the stand;” this is rather suggestive and we do not say that it is not objectionable. However, it was not excepted to by this appellant nor his counsel and it was not brought upon the record, and the learned court refused to bring said language upon the record and to seal a bill at the request of counsel for another defendant. Therefore for the reasons given in the opinion above referred to, we cannot review this language. In our opinion, the evidence was quite sufficient to warrant the jury in finding this appellant guilty of conspiracy to cheat and defraud, and we find no reversible error in the record.

The assignments of error are all overruled. Judgment affirmed, and the record is remitted to the court below to the end that the appellant may be committed to serve the unexpired portion of his sentence, at the time this appeal was made a supersedeas.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Punxsutawney Borough v. Carmalt, Appellant.
    : Affidavit of defense — Practice, C. P. — Municipal lien.

    1. An affidavit of defense should set forth fully and fairly facts insufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or from manifest evasiveness in the mode of statement, it will be sufficient to prevent judgment. But if not deficient in either of these respects and on its face fairly sets forth a prima facie defense, it is not to be subjected to close technical examination as if it were a special plea demurred to. Its office is to prevent a summary judgment,' and for that purpose a showing of a defense with certainty to a common intent is sufficient.
    2. In an action by a borough against a property owner to recover the costs of curbing the street in front of defendant’s premises, an affidavit of defense is sufficient to prevent judgment which denies the existence, passage, certification and promulgation of the ordinance relied upon by the plaintiff as the foundation of the claim.
    Argued May 4, 1909.
    Appeal, No. 166, May T., 1909, by defendant, from order of C. P. Jefferson Co., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Punxsutawney Borough v. Edward A. Carmalt.
    Before Rice, P. J:, Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    . Assumpsit for cost of curbing. Before Reed, P. J.
    The opinion of the Superior Court states the case.

      July 14, 1909:

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      A. L. Cole, with him Jeff G. Wingert, for appellant. —
    An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statements, it will be insufficient to prevent judgment: Thompson v. Clark, 56 Pa. 33.

      W. M. Gillespie, for appellee.
   Opinion by

Orlady, J.,

This is an action of assumpsit on a municipal lien filed under the provisions of a general ordinance of the borough. An affidavit of defense was filed which was determined to be insufficient, and a judgment in favor of the plaintiff was entered. The case must be disposed of on this appeal in the light of the statement and of the affidavit of defense. The validity of the plaintiff's claim necessarily depends upon the authority of the borough to enact the ordinance in controversy. In the affidavit the defendant denied the existence, passage, certification and promulgation of such an ordinance as the plaintiff sets out in the statement.

In Andrews v. Packing Co., 206 Pa. 370, the present chief justice of the Supreme Court fixes the requirements of an affidavit of defense, and when complied with, the effect to be given to it, as follows: An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or from'manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly sets forth a prima facie defense, it is not to be subjected to close technical examination as if -it were a special plea demurred to. Its office is to prevent a summary judgment, and for that purpose a showing of a defense with certainty to a common intent is sufficient.

The sufficiency of this affidavit must be determined by the rule therein announced, and while there are a number of assignments of error, and apparently there is more in the case than appears on the surface of the record, the question before us is the sufficiency of the affidavit. With the special and definite denial of the existence of the ordinance upon which the action is founded, the conclusion of the affidavit, “All of which the defendant believes and expects to be able to prove,” must be considered as sufficient to prevent summary judgment, and the parties should be remanded to a trial by a jury: Eastern Forge Co. v. Baizley, 21 Pa. Superior Ct. 504; Hatboro National Bank v. Stevenson, 33 Pa. Superior Ct. 144; Stern v. Dwyer, 35 Pa. Superior Ct. 132. For this reason alone the judgment is reversed and the case remitted to the court below with a procedendo.


author: Morrison, J.,

text:
    Sonricker, Appellant, v. Sonricker.

      Divorce — Indignities to person — Evidence.
    A wife will be granted a divorce on account of indignities to her person rendering her condition intolerable and her life burdensome where the uncontradicted evidence establishes that she was knocked down several times by her husband, and choked and kicked in the stomach; pinched until marks were left upon her body, called vile, indecent and vulgar names, charged with being a whore' and with running after other men, locked out of the house, deprived of fuel and other necessaries, turned out of her room without a home or shelter, and the woman with whom she roomed notified that he would pay no more rent, thus depriving her of a place to live, a shelter or a home. •
    Submitted May 11, 1909.
    Appeal, No. 115, April T., 1909, by plaintiff, from order of C. P. Butler Co., June T., 1907, No. 71, dismissing libel in divorce in case of Emma Sonricker v. George E. Sonricker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Libel for divorce. Before Galbreath, P. J.
    The facts are stated in the opinion of the Superior Court.

      July 14, 1909:

      Error assigned was in dismissing libel in divorce.

      W. H. Martin, for appellant. —
    Just what course of conduct will amount to indignities affording grounds for a divorce has not and cannot be precisely defined, but the manifest intention of the law was to recognize a woman’s human feelings and to give relief when her life is willfully and purposely embittered and ruined by a husband who makes her life with him one of punishment, humiliation and degradation: Elmes v. Elmes, 9 Pa. 166; Doan v. Doan, 3 Clark, 7; Mason v. Mason, 131 Pa. 161; Preston v. Preston, 11 Pa. Dist. Rep. 97; May v. May, 62 Pa. 206; Breinig v. Breinig, 26 Pa. 161; Preston v. Preston, 11 Pa. Dist. Rep. 97.
    No paper-book was filed for appellee.
   Opinion by

Morrison, J.,

The opinion of the learned judge below is as follows:— “October 3, 1908. The testimony in this case is deemed insufficient and the divorce is therefore refused. Eo die a bill of exceptions is sealed for the plaintiff to the refusal and dismissal of the petition.”

No question is raised as to the sufficiency of the libel, and marriage and separation of the parties was clearly and sufficiently proved. Nor was any- question of jurisdiction raised, and the libel and testimony clearly gave the court below jurisdiction. The cause of divorce stated in the libel is as follows: “Yet so it is that the said George E. Sonricker from the 8th day of October, 1905, and prior thereto, in the year of our Lord, has offered such indignities to the person of your petitioner as to render her condition intolerable and her life burdensome and thereby compelled her to withdraw from his house and family.”

We have carefully read and considered all of the testimony and find it impossible to agree with the decision of the learned judge below. The parties were married on March 7, 1904, and separated finally in October, 1905. The first witness was Mrs. Sonricker herself who simply proved the marriage. The next witness was Mrs. Dormer who testified in substance as follows: He was abusive to her, beat her and left marks on her and was abusive with his tongue. He assaulted and beat her once ■that I know of while I was with them in Kárns City, Butler county. He called her all the evil names he could lay his tongue to; called her a whore. This witness was a married daughter of libelant by a former husband, also testified that her mother had been making her home in Butler county for three years.

The next witness was Mrs. Nancy Ross. She testified that she was eighty-three years old, resided in Mt. Vernon, Ohio, and is the mother of the libelant, and that she knew the respondent; that-she lived with them a short time after September, 1905. She says she saw him abuse his wife several times; saw him knock her down, choke her and beat her over the head and kick her in the stomach; heard him call her vile names and he was cruel to her in his general treatment. He locked her out of the house once and finally drove her from her home; libelant had to leave as he deprived her of food and fuel and all the necessaries of life. Witness further said she heard him call her a dirty bitch, a slut and a whore and said she Would run after anybody on the streets, and always addressed her in a gruff and unpleasant manner. This witness further testified to the good conduct of the libelant; that she did her whole duty toward respondent as a wife.

The next witness was Mrs. Sarah J. Carson. She knew the parties and had heard the respondent talking very loud to Mrs. Sonricker; they were living in her (Mrs. Carson's) house and he came into the room with a written notice and said he was leaving his wife and would not be responsible for the room rent. “If you keep her she will have to pay the rent herself, I will keep her no longer.” That was in the latter part of October, 1905.

Mrs. Dormer was recalled and testified: “He knocked her down and lacked her and grabbed her flesh in this way, and she had marks from a pinch to her knees. She came to me and when she came she had marks on her. About his general treat.ment of her she said he was very abusive and neglected her. He used vile language toward her.”

We think the case, of Mason v. Mason, 131 Pa. 161, where the lower court was reversed for dismissing a petition in divorce on the ground that the respondent had offered such indignities to the person of the petitioner as to render her condition intolerable and her life burdensome, is a clear authority that the court erred in dismissing the libel in the present case.

In May v. May, 62 Pa. 206, it was held as stated in the syllabus: “The indignities to the person need not be such as to endanger life or health; but such as would render life too humiliating to bear.”

In Krug v. Krug, 22 Pa. Superior Ct. 572, we held: “ No single act of indignity to the person is sufficient cause for divorce; there must be such a course of conduct or continued treatment as renders the wife’s condition- intolerable and life burdensome. The indignities need not be such as to endanger life or health; it is sufficient if the course of treatment be of such a character as to render the condition of any woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome: Elmes v. Elmes, 9 Pa. 166; May v. May, 62 Pa. 206; Melvin v. Melvin, 130 Pa. 6; Mason v. Mason, 131 Pa. 161; Oxley v. Oxley, 191 Pa. 474. When a husband who is mentally responsible pursues such a continued course of treatment as to naturally reduce a reasonable woman to the condition defined by the statute, and thereby forces his wife to withdraw from his home, she is entitled to a divorce.”

We might multiply authority, but it is unnecessary. The uncontradicted evidence establishes that this libelant was knocked down several times, and choked and kicked in the stomach, pinched until marks were left upon her body, called vile, indecent and vulgar names, charged with being a whore and with running after other men, locked out of the house, deprived of fuel and other necessaries, turned out of her room without a home or shelter, the woman with whom she roomed notified that he would pay no more rent, and thus depriving her of a place to live, a shelter or a home. These indignities happened partly in Pennsylvania and partly in Ohio and they were continued. There was not a particle of testimony contradicting a single fact testified to by libelant’s witnesses and we are of the opinion that the testimony amply sustains the grounds of divorce set up in the libel.

' The assignments of error are sustained, and the decree is reversed, and it is now ordered and decreed as follows, to wit: This cause came on to be heard by the Superior Court of Pennsylvania on appeal from the judgment of the common pleas of Butler county dismissing the libel, and upon due consideration of the libel and of the testimony, it appears to us that the facts set forth in the libel are true and, therefore, upon due consideration, it is ordered, adjudged and decreed, that the court below enter a proper decree divorcing the libelant from the bonds of matrimony heretofore entered into with the respondent.

And it is further ordered, adjudged and decreed, that the said George E. Sonricker, the respondent, pay the costs of this proceeding.


author: POPOVICH, Judge:

text:
    567 A.2d 1089
    COMMONWEALTH of Pennsylvania, Appellee, v. Frank PASTORKOVIC, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Dec. 21, 1989.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    Matthew Witherel, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the January 11, 1989, order of the Court of Common Pleas of Allegheny County denying the Motion For a Writ of Habeas Corpus/Reconsideration of Commitment Order filed by the appellant, Frank Pastorkovic. We affirm.

The facts, which appear of record, indicate that on July 8, 1986, the then seventy-seven-year-old appellant pleaded guilty to two counts of driving while under the influence of alcohol (75 Pa.C.S. § 3731(a)(1) & (4)) and driving while his operating privilege was suspended or revoked. Id. at § 1543(a) & (b).

On August 15, 1986, the court directed that the appellant “undergo imprisonment of one year in the Allegheny County Jail ... [and, a]t the conclusion of that one year, [he] w[as to] be placed on one year’s probation____” On the summary offense, a determination of guilty without further penalty was entered. The court also informed the appellant that the warden of the Allegheny County Jail was being instructed to transport him to a Pittsburgh area hospital for medical evaluation to enable the court “to be able to have a better understanding as to the possibility for undergoing incarceration at the [Allegheny] County Jail.”

A motion for reconsideration of sentence was filed and denied. An appeal to this Court (at No. 01192 Pittsburgh 1986) resulted in the appeal being quashed. Petition for allowance of appeal (at No. 88 W.D.Alloc.Dkt.1988) to the Pennsylvania Supreme Court was denied by order dated October 20, 1988. 520 Pa. 587, 551 A.2d 214.

On June 3, 1989, counsel for the appellant filed the motion in question, wherein it was alleged in pertinent part that:

5. The written judgment of sentence entered by the court confirms that the sentence imposed was a one year term of incarceration (A copy of the August 15, 1988 [sic] judgment of sentence is attached to this Motion as Exhibit B).
6. Mr. Pastorkovic was directed to report to the Allegheny County Jail for imposition of sentence on December 27, 1988. As the result of a medical report stating that the County Jail cannot provide Mr. Pastorkovic with an adequate level of medical care, the Warden refused to accept Mr. Pastorkovic into custody.
7. Without notice to counsel or an opportunity to be heard, the court then modified Mr. Pastorkovic’s sentence so as to require his incarceration in the diagnostic and classification unit of the State Correctional Institute of Pittsburgh for a period of 1 to 2 years. (A copy of the December 27 commitment Order is attached to this Motion as Exhibit C).
8. At the time the Court entered its December 27 Order, it had no jurisdiction to alter the length of the term of Mr. Pastorkovic’s sentence.
9. The legality of the original sentence had previously been upheld by virtue of the Superior Court’s January 13, 1988 Order denying Mr. Pastorkovic’s appeal from the sentence and the Supreme Court’s denial of allocatur on October 17, 1988.
10. The effect of the Court’s December 27,1988 order is to illegally double the period of time within which Mr. Pastorkovic may be incarcerated.
11. Mr. Pastorkovic, who has reported to the Allegheny County Jail for transportation to the State Correctional Institution at Pittsburgh, is prejudiced by the court order doubling his sentence. [But see footnote 6, infra]
WHEREFORE, Mr. Pastorkovic requests the court to release him from the illegal sentence imposed on December 17, 1988 or, in the alternative, reconsider and rescind that illegal order.

On January 11, 1989, a hearing to rule on the appellant’s Motion For A Writ Of Habeas Corpus/Reconsideration Of Commitment Order was conducted. At that time, counsel for the appellant reiterated what appeared in his motion, e.g., that the lower court’s December 27, 1988, modification of the sentence (from a one year term of imprisonment and equal term of consecutive probation to a one to two-year period of incarceration and one year consecutive probation) was “illegal” because it increased the maximum sentence to a three-year sentence (one to two years imprisonment followed by one year probation).

It was the court’s position that the “reason for the modification of sentence” was to determine by “verification through a doctor” whether Allegheny County Jail was the appropriate facility, and, if not, to consider if the State Correctional Institute of Pittsburgh, through the Bureau of Corrections, would be better suited “to facilitate the needs of” the appellant, who had suffered a heart attack and was in need of treatment for his alcoholism. “[A]nd that [was] the reason for modification of the sentence”, so stated the court. More specifically, the court stated.

There is no prejudice to the defendant. He still has the mandatory minimum sentence, and he will be eligible for parole at the expiration of the minimum term____
Now, the function of one to two is ... the way or mechanism to have him sentenced to the institution in which he could get the maximum medical care that he could not get in the Allegheny County Jail. As a practical matter he still has the minimum of one year, as a reasonable modification.

On the completion of the hearing, the appellant’s motion was denied and a timely appeal to this Court was perfected.

Before addressing the merits of the appellant’s appeal, we would observe at the outset that the assault on the lower court’s order denying the appellant’s motion is, in essence, a request to review the imposition of an “illegal” sentence. Such being the case, in this Commonwealth the “illegality” of a sentence is a non-waivable issue, and, in fact, it may be the subject of inquiry by an appellate court sua sponte. See Commonwealth v. Ford, 315 Pa.Super. 281, 297, 461 A.2d 1281, 1289 (1983); Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 555, 419 A.2d 596, 597 (1980). Accordingly, the judgment of sentence, which was the subject of the court’s modification order of December 27, 1988, was sought to be altered by the appellant via the Habeas Corpus hearing on January 11, 1989. We find that both order and hearing are intertwined in that each touched upon the sentence found by this Court, in the discussion infra, to have been “illegal” as not conforming with accepted practice in imposing sentences. As such, the January 11, 1989, order is held to be appealable and subject to scrutiny by this Court. See Commonwealth v. Betoni, 254 Pa.Super. 26, 28, 385 A.2d 506, 507 (1978).

The issue, as preserved for our review, appears in the appellant’s brief at page 3 and reads:

DID THE LOWER COURT COMMIT PREJUDICIAL ERROR WHEN IT DOUBLED THE DEFENDANT’S MAXIMUM PERIOD OF CONFINEMENT AND INCREASED THE TOTAL SENTENCE BEYOND THAT PERMITTED BY LAW BY ORDER ENTERED MORE THAN TWO YEARS AFTER ENTRY OF THE JUDGMENT OF SENTENCE?

Our discussion commences with the fact that the offense for which the appellant was convicted (i.e., driving under the influence of alcohol) is labelled a misdemeanor of the second degree. When we add to this the additional fact that the appellant had been convicted of at least three identical offenses within the previous seven years, the potential sentence which could have been imposed initially ranged from a minimum of not less than one year to not more than two years in prison. See 75 Pa.C.S. § 3731(e)(l)(iv) (Supp. 1989-90) and 18 Pa.C.S. § 1104(2). Therefore, the initial sentence of “imprisonment of one year” was not in conformity with the law.

As just mentioned, the Legislature mandated a minimum sentence of one year imprisonment for those convicted of more than three driving-while-intoxicated offenses within a seven-year period. Id. Under the Sentencing Code, a court shall, at the time of sentencing, specify a maximum and minimum sentence of confinement, the latter of which shall not exceed one-half of the maximum sentence imposed. See 42 Pa.C.S. § 9756(a) & (b); see also Commonwealth ex rel. v. Francies, 67 Pa.Super. 588, 591 (1917).

Because the court below entered an illegal sentence by order dated August 15, 1986, it had the inherent power to rectify the error, sua sponte, even after the term of court had ended and/or the thirty-day period for modification of the same had expired. See Commonwealth v. Horsman, 239 Pa.Super. 534, 537, 361 A.2d 433, 434 (1976); Commonwealth v. Aeschbacher, supra; 10A P.L.E. Criminal Law § 836.

To endorse the appellant’s position that would let stand the one year term first imposed, given its affirmance on appeal by this Court and the denial of allocatur by the Supreme Court, would affront common sense and condone the concept that a defendant whose guilt is established by plea or verdict may avoid the full panoply of the law because a court committed an error on passing the sentence. See Beale v. Com., 25 Pa. 11, 22 (1855); Com. v. McMillan, 376 Pa.Super. 25, 33, 545 A.2d 301, 305 (1988). If this Court were to sanction such a rule, we would be failing in our duty to correct (sentencing) errors and to “minister justice”. Id.; Commonwealth v. Von Aczel, 295 Pa.Super. 242, 254-55, 441 A.2d 750, 756 (1981).

In that same vein, the conduct of the court below, in altering the improperly issued sentence of August 15, 1986, by entering a sentence of one to two years imprisonment per order dated December 27, 1988, was valid insofar as it complied with the applicable provisions of the Sentencing Code, Motor Vehicle Code and the Crimes Code. See 42 Pa.C.S. §§ 9756(a) & (b), 5505; 75 Pa.C.S. § 3731(a)(l)(iv); 18 Pa.C.S. § 1104(2).

However, consistent with the appellant’s contention below and on appeal, the sentencing modification was accomplished without notice or opportunity to the appellant or his counsel to be heard on the matter. Only after the matter was a fait accompli did appellant’s counsel learn of the matter via the warden. See Defendant’s Statement of Issues Raised on Appeal and Supporting Memorandum at 4 (Record No. 31); Appellant’s Brief at 6. Such action on the part of the court below is not consistent with the accused being present at every vital stage of the criminal process. See, e.g., Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Defendant has the right to be present when sentence is entered in open court); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1986) (Defendant has a right to allocution pri<j»r to the imposition of sentence); Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981) (Defendant has a right to be present during suppression); Commonwealth v. Horsman, supra (Defendant is entitled to notice of the modification of his sentence in advance of it taking place).

Because the order appearing on the back of the Information sheet does not inake reference to the appellant’s presence during the modification of sentence effectuated on December 27, 1988, the written order of the court being controlling on this point (see Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984); cf. Pa.R.Crim.P. 1405), we would normally reverse the judgment of sentence to afford the appellant the opportunity to be present at the modification so as to remark upon the proceedings, as is his right. See Commonwealth v. Horsman, supra; see also Commonwealth v. McLaurin, supra. However, because the sentence ultimately imposed is the only sentence that could have been entered, given the statutory sentencing scheme and the factual context of the appellant’s prior record, we see no need to remand and we will affirm the action of the court below. See Commonwealth v. Von Aczel, supra.

Further, the fact that the court issued a sentence of one to two years imprisonment, which increased by one year the previously entered one year definite term (as to the maximum and minimum period of confinement), does not violate any principles of double jeopardy. Our Supreme Court has spoken on this subject by pointing out that “an illegal sentence is a legal nullity, and sentencing court’s must have the authority to correct such a sentence even if that means increasing the sentence.” Commonwealth v. Jones, 520 Pa. 385, 390, 554 A.2d 50, 52 (1989); see also 10A P.L.E. Criminal Law § 835. This is what transpired below.

Judgment of sentence affirmed.

      . The appeal to this Court did result in a review of the merits of the appellant’s complaints that: (1) the one year mandatory minimum sentence was unconstitutional as it applied to a person of his age and health, and (2) the court below abused its discretion by sentencing him to incarceration in the Allegheny County Jail, as opposed to some form of supervised house arrest.
      This Court concluded that the issues challenged the discretionary aspect of the sentence, and the appellant’s failure to comply with Pa.R.App.P. 2119(f) resulted in the appeal being quashed.
      However, the legality of the sentence as to it conforming with the maximum and minimum requirements of the Sentencing Code was not addressed, and, thus, it was not finally litigated. See Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981).

      . In particular, the August 15, 1986, judgment of sentence of one year imprisonment, without setting forth the minimum and maximum limits, was subject to modification by the court below. See Commonwealth ex rel. v. Francies, 67 Pa.Super. 588, 591-92 (1917).

      . The sentence was certainly not, in form, for an indefinite term, but for a definite and fixed term, and, therefore, was not in accordance with the mandatory provisions of the Sentencing Code. See 42 Pa.C.S. § 9756(a) & (b); see also Commonwealth ex rel. v. Francies, 75 Pa.Super. 269, 270 (1920). It was, essentially, not.an indeterminate sentence as is required under Pennsylvania law. See Commonwealth v. Party, 306 Pa.Super. 390, 393, 452 A.2d 781, 782 (1982).

      . Even the lower court’s opinion does not refute the absence of the appellant at the time set for modification of sentence on December 27, 1988. Specifically, see Lower Court Opinion at 4 filed February 6, 1989, at Record No. 34.

      . We would note that in those instances where a modification of sentence is warranted, the perimeters of which are not as fixed as the case at bar by statute and the facts, it would be advisable for the sentencing court to have the accused present during the change in the sentence first imposed. See Commonwealth v. Horsman, supra.

      . It requires mentioning that the appellant is presently on bail pending appeal. See Record No. 30.


author: PER CURIAM: WIEAND, Judge,

text:
    567 A.2d 1093
    Denise LITES, Appellant, v. Arnold BERMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 17, 1989.
    Filed Dec. 26, 1989.
    Petition for Allowance of Appeal Granted May 8, 1990.
    Frederick C. Timm, Philadelphia, for appellant.
    Harry G. Mahoney, Philadelphia, for appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   PER CURIAM:

Order affirmed.

WIEAND, Judge,

dissenting.

The majority has dutifully followed the holding of a panel of this Court in Joseph Palermo Development Corp. v. Thomas Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989) and has sua sponte quashed this appeal even though the appeal, when filed, was proper under Pa.R.A.P. 311(a)(1) and not then subject to being quashed. Because I am of the opinion that Palermo was incorrectly decided, I respectfully dissent.

The appeal in this case was filed on December 22, 1988, and sought review of an order of the trial court which had opened a default judgment. Such an appeal was authorized by Pa.R.A.P. 311(a)(1), which provided specifically that an appeal could be taken as of right from “[a]n order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.” The appeal, therefore, was a proper appeal when taken and could not properly be quashed.

Appellate Rule 311(a)(1) was amended by the Supreme Court on March 31,1989, to allow an immediate appeal as of right only from an order refusing to open, vacate or strike off a judgment. The order of the Supreme Court which adopted the amended rule directed that the amendment “shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.”

The instant matter had been commenced in the trial court prior to the amendment of Rule 311(a)(1). A default judgment had been entered and also opened prior to the amendment, and an appeal therefrom had been filed at a time when the applicable rule expressly granted an immediate appeal as of right. The appellant paid a fee to file her appeal. She also prepared and filed a brief and a reproduced record. The appellee did not object to the appeal— the appeal was, as we have seen, procedurally proper — and responded by filing his own brief on the merits. For this Court to quash the appeal sua sponte because of an amended rule which became effective after the appeal had been taken is grossly unfair to counsel and the parties and is wholly unwarranted by any substantive or procedural rule of law. It is neither just nor practicable to apply the amended rule retroactively so as to throw the parties out of court without decision when their appeal, at the time when it was filed, was proper and in accordance with the specific language of the rule. To hold otherwise is to forget that the courts exist to serve the litigants and not vice versa. It is also in direct violation of Pa.R.C.P. No. 152. This rule provides specifically that when a procedural rule is amended, “the new provisions shall be construed as effective only from the date when the amendment became effective.”

In Palermo, a panel of this Court acted sua sponte to quash an appeal from an order opening a confessed judgment even though the appeal had been properly filed in accordance with existing law. This, in my best judgment, was not only erroneous but a disservice to the litigants, to their attorneys, and to the members of the public. It was not only contrary to the general rule which precludes the retroactive application of procedural rules, but it is contrary to the mandate of the Supreme Court and the intent of its Appellate Rules Committee as manifested in the order of the Supreme Court.

Because a majority of this Court has elected to follow Palermo, I am constrained to dissent. The appeal in this case was properly taken. Therefore, it should be decided and not quashed. Although it will probably come as small consolation to the parties that only a dissenting minority has considered the merits of the appeal, I propose to ameliorate the unfairness of the majority’s decision by reviewing the circumstances which led the learned trial judge to open the default judgment in this case.

A petition to open a default judgment is addressed to the equitable powers of the court. A decision by a trial court which opens such a judgment will not be overturned in the absence of a manifest abuse of discretion. Central Penn National Bank v. Williams, 362 Pa.Super. 229, 232, 523 A.2d 1166, 1167 (1987). “In order to grant a petition to open a default judgment, the following factors must coalesce: (1) the petition to open must have been promptly filed; (2) a meritorious defense must be set forth; and (3) there must be a reasonable explanation for [the default].” Burkett v. Allstate Ins. Co., 368 Pa.Super. 600, 603-604, 534 A.2d 819, 821 (1987).

In the instant case, the appellant does not contend that the petition to open was untimely filed or that appellee has no defense to the action. She argues only that the appelleedefendant failed to offer a reasonable excuse for his default.

Denise Lites, the plaintiff-appellant, was allegedly injured when she was struck by a toilet door on the seventh floor of a building owned by Arnold Berman, the defendant-appellee, at 219 North Broad Street, Philadelphia. The seventh floor of the building had been leased to plaintiffs employer, Program Systems Institute, pursuant to a written lease which contained an indemnity clause and an agreement that the tenant would obtain liability insurance to include Berman, the owner, as a named insured. The insurance purchased by the tenant was issued by CNA Insurance Company. Berman was himself insured under a policy which had been issued by Regis Insurance Company.

The trial court found that the default had been inadvertent because of an expectation by Berman and his insurance carrier that the defense of plaintiffs action would be undertaken by CNA. It has been held that inadvertent errors by an insurer resulting in the entry of a default judgment against its insured may be sufficient justification for opening a judgment where the error is one of oversight and does not arise from a deliberate decision not to defend. Balk v. Ford Motor Co., 446 Pa. 137, 142, 285 A.2d 128, 132 (1971); DiNenno v. Great Atlantic & Pacific Tea Co., Inc., 245 Pa.Super. 498, 502, 369 A.2d 738, 740 (1976).

Therefore, I would affirm the trial court which concluded that the equities of the case were such that the default judgment against the defendant-lessor should be opened. I respectfully, but vigorously, dissent from the decision of the majority to quash the appeal.


author: PER CURIAM: JOHNSON, Judge,

text:
    567 A.2d 1095
    Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Farouk M. GEORGY, M.D., and Lyon, Cooper, Hipple, Georgy and Collins, P.C., Appellees. Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Leonard COLLINS, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1989.
    Filed Dec. 13, 1989.
    Petition for Allowance of Appeal Granted May 8, 1990.

      Roberta D. Pichini, Philadelphia, for appellants.
    Dennis Bonetti, Harrisburg, for appellees.
    Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.
   PER CURIAM:

This case presents a single issue never before addressed by a Pennsylvania court. The issue is whether a Wrongful Death and Survival action will lie on behalf of a fetus which, although allegedly born alive, was concededly not viable at the time of birth. We hold that nothing in the law of Pennsylvania suggests that such a cause of action exists and we decline to create it on the ground that to do so would be to overstep the proper boundaries of the judicial function.

Appellants are Ann and Michael Hudak, who brought the instant medical malpractice action both as individuals and in their capacity as co-administrators of the estates of Joseph, David and Michael Hudak, three non-viable fetuses. Appellees are Drs. Georgy and Collins and the medical professional corporation with which they are associated, Lyon, Cooper, Hippie, Georgy & Collins, P.C.

Mrs. Hudak was under the care of appellees for infertility in the early 1980’s. In early 1982, Mrs. Hudak became pregnant but shortly thereafter experienced a miscarriage. In late 1982, Mrs. Hudak was again found to be pregnant, this time with triplets. On the evening of April 10, 1983, Mrs. Hudak called defendants’ answering service to alert them that she was experiencing cramping. On Dr. Georgy’s advice, Mrs. Hudak went to the hospital where Dr. Collins was on duty. Dr. Collins began administering medication to Mrs. Hudak to stop her contractions. The treatment succeeded and Mrs. Hudak was transferred to another hospital where her treatment was administered by doctors other than defendants. The next day, however, Mrs. Hudak’s contractions recommenced. The triplet fetuses were delivered by caesarean section late that afternoon. Two of the fetuses were allegedly born alive, but died within minutes of birth. The third, also allegedly born alive, was placed on a respirator but died in the early morning hours of the next day.

Appellants allege that defendants were negligent in failing properly to treat Mrs. Hudak to stop her premature labor on the night of April 10th. They basically allege that defendants unduly delayed in treating Mrs. Hudak and that this delay resulted in the deaths of the fetuses.

In addition to the wrongful death and survival actions brought on behalf of the three fetuses, appellants also brought actions for negligence on their own behalf, alleging physical injuries to Mrs. Hudak and emotional distress to both Mr. and Mrs. Hudak as a result of the loss of the three fetuses. These actions are not at issue here.

Appellees sought to have the wrongful death and survival actions dismissed on the ground that Pennsylvania law does not recognize a cause of action for wrongful death and survival on behalf of a non-viable fetus. The parties stipulated on the record in the court below that the three fetuses involved herein were non-viable at the time of birth and that non-viable was to be understood to mean incapable of living outside the womb because of immaturity.

On February 9, 1988, the trial court issued an order granting defendant’s motion to dismiss and entering judgment in their favor. Appellants took this timely appeal.

Determination of the issue presented depends upon interpretation of the Wrongful Death and Survival Acts, pursuant to which appellants brought the instant action. Nothing in the express language of either Act addresses this issue. The Wrongful Death Act simply provides that a cause of action exists “for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.” 42 Pa.Cons. StatAnn. § 8301 (1982). Reference to the Statutory Construction Act reveals that the word “individual”, for whose death recovery is allowed, is defined to mean a “natural person”. 1 Pa.Cons.Stat.Ann. § 1991 (1989). However, the phrase “natural person” is not defined. The Survival Act provides, in pertinent part, only that all causes of action shall survive the death of the plaintiff. Id. 42 Pa.Cons.Stat. Ann. § 8302.

Thus, the face of the statutes tells us nothing as to whether a non-viable fetus should be considered an individual on whose behalf a wrongful death action may be brought or whether a non-viable fetus is a plaintiff who had a cause of action which survives when the pregnancy terminates. Moreover, as the Supreme Court has indicated, “... the legislative history [of the Wrongful Death Act] ... reveals an absence of any indication regarding the proper resolution____” of issues like the one presented by this case. Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) (emphasis supplied).

In this vacuum of express statutory guidance or legislative history, we must look to prior judicial interpretations of the Acts to ascertain whether they are instructive. This search for authority is equally unfruitful. As the discussion that follows illustrates, there is no pronouncement of Pennsylvania law directly on the issue presented and those cases addressing related issues do not provide clear principles that can be applied in resolving the issue.

Two Supreme Court decisions regarding the right to recover for prenatal injuries are arguably pertinent to the issue presented. The first is the 1960 decision of the Supreme Court in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). The complaint alleged that the plaintiffs mother had been involved in a car accident when she was one month pregnant with the plaintiff and that injuries received by plaintiff at that time caused her to be born Mongoloid. Id. at 268, 164 A.2d at 93. The plaintiff was born a full term child.

The Sinkler Court reasoned that while it was formerly believed that a child en ventre sa mere was merely part of its mother’s body until the moment of birth, this view was no longer supported by medical authorities. The Court further stated that the negligence cause of action should not be barred simply because the injuries were allegedly suffered while the child was not viable. Id., 401 Pa. at 270, 273, 164 A.2d at 94, 95-96.

Appellant argues that under Sinkler, wrongful death and survival actions must be allowed in the instant case because it is alleged that the fetuses involved herein were born alive and that this fact is all that is required. We disagree. Since the injuries suffered by the plaintiff in Sinkler did not result in the plaintiff child’s death, that case did not involve actions for wrongful death and survival. For the same reason, Sinkler did not involve the question of the significance of viability at birth which is raised by the instant case. The Sinkler Court’s comments regarding viability were addressed to the significance of viability at the time of injury and are not ipso facto pertinent to a discussion of whether a cause of action for wrongful death and survival should lie on behalf of a fetus not viable at the time of birth.

The second pertinent decision of the Supreme Court is Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985). In Amadio, plaintiff-parents alleged that the defendant doctors’ negligence had caused the stillbirth of plaintiffs’ daughter, who was a full term child at the time of birth. The trial court dismissed plaintiffs’ wrongful death and survival actions, relying on prior Supreme Court holdings that wrongful death and survival actions did not lie on behalf of stillborn children. See Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff 415 Pa. 47, 202 A.2d 9 (1964).

The Supreme Court reversed after reanalyzing its prior holdings and expressly rejecting the reasoning on which they had been based. The court found that since Sinkler recognized a cause of action for negligence by a child born alive for injuries suffered by the child while in útero, it would be illogical to allow recovery to such a child and yet to deny recovery simply because the injuries received in útero resulted in the stillbirth of the child. Thus, the court overruled Scott, Marko and Carroll, holding that estates of stillborn children do have the right to institute wrongful death and survival actions for “death-dealing injuries suffered while en ventre sa mere.” Amadio, 509 Pa. at 208, 501 A.2d at 1089. In so doing, the court aligned itself with the growing national trend toward allowing such actions on behalf of stillborn children. Id. 509 at 208, 501 A.2d at 1087 n. 3.

A careful examination of the Amadio majority opinion, coupled with a review of the lengthy concurrence authored by Justice Zappala and the various dissenting opinions, reveals that Amadio is not a decision by the Supreme Court on the issue presented in the instant case. Nor does Amadio impliedly command any particular result when applied to this case. The issue presented in Amadio concerned the availability of wrongful death and survival causes of action to the estates of full term, i.e. viable, but stillborn children. In granting these actions to such plaintiffs, the court eliminated the only prior barrier to such actions — the requirement of live birth. However, the court did not determine whether such actions would lie where another potential barrier to the action exists — that the plaintiff sues on behalf of a fetus that never achieved viability. As Justice Zappala was careful to point out:

Because the Complaint in this case asserts that Jennifer [the Amadio child] was “viable” at the time the allegedly negligent conduct of the defendants caused her death, the questions involved in circumstances implicating “viability” in other ways must be left for another day.

Id., 509 Pa. at 230 n. 7, 501 A.2d at 1101 n. 7 (Zappala, J., concurring).

Examination of the majority opinion substantiates Justice Zappala’s statement. The majority did not decide whether non-viability would have barred the causes of action. Nor does the majority opinion instruct us as to how the Supreme Court would decide the issue before us if presented with it.

Nor do the remaining opinions in Amadio give us clear guidance. Chief Justice Nix, writing in dissent, opines that by his reading, “... the majority appears to assign this ‘new cause of action’ based upon the viability of the fetus.” Id., 509 Pa. at 236, 501 A.2d at 1104 (Nix, C.J., dissenting). In contrast, as noted above, Justice Zappala, who both joined the majority and separately concurred, stated that since the Amadio child was viable, no questions implicating viability under other circumstances were to be considered decided by Amadio.

This summary of the pertinent decisions reveals that we are in uncharted seas. We have no expressions of legislative intent on which to rely, nor do we have guidance from the Supreme Court. Given the nature of the issue before us, we conclude that it is up to the legislature to create the cause of action. In the absence of any expression of intent from the legislature or any analysis by our Supreme Court, we cannot decide that fetuses born prior to attaining viability should now be accorded the same rights that children who have attained viability have been accorded under the Wrongful Death and Survival Acts. As Chief Justice Nix wrote in his dissent to Amadio:

It is a cardinal principle that fundamental public policy should be ascertained and articulated through legislative fiat and not through judicial edict. For illustration, the majority appears to assign this “new cause of action” based upon the viability of the fetus. This option in favor of viability as opposed to conception touches upon one of the most controversial questions of our day. Clearly, disputes of this nature cannot satisfactorily be resolved by court decisions.

Id., 509 Pa. at 230, 501 A.2d at 1104 (Nix, C.J., dissenting). See also Id., 509 Pa. at 237-238, 501 A.2d at 1105 (Hutchinson, J., dissenting) ( ... the majority incorrectly ventures into policy areas more properly left to the legislature — ); Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297 (1975) (court refuses to extend wrongful death right of action to stillborn non-viable fetus on ground that to do so would be usurpation of legislative function).

We, therefore, affirm the trial court’s dismissal of appellants’ wrongful death and survival actions.

JOHNSON, J., filed a concurring opinion.

JOHNSON, Judge,

concurring.

I agree that the wrongful death and survival actions should have been dismissed. However, I would look to whether an injury had been alleged sufficient to support a cause of action prior to considering the viability of the fetus as an element of recovery.

These actions had been consolidated for trial prior to this appeal. The defendants had filed preliminary objections challenging the adequacy of the complaints with respect to the alleged negligence, injury and the specifics of each. In each case, the objections were overruled. I recognize that the earlier orders overruling the preliminary objections are interlocutory and not directly before us on this appeal. Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). Nevertheless, we have been invited to review the order granting the defendants’ motion to dismiss — final and appealable as to three of the named plaintiffs — upon the representation that this appeal may materially advance the ultimate termination of the matter, see Pa.R.A.P. 1312(a)(5). Since I believe that the complaints fail to allege an injury cognizable in a trespass action, I would affirm the trial court without reaching the issue which my colleagues so ably have addressed.

The complaints filed at Nos. 83-02248 and 84-01045 in the trial court are virtually identical. Each Paragraph 8 avers:

The only other reference to the alleged injuries to the fetuses appears in Paragraph 20, under Count III of each Complaint, where it is averred:

20. Solely by reason of the carelessness, negligence, gross negligence, and recklessness of defendants]____ Joseph Hudak, deceased, David Hudak, deceased, and Michael Hudak, deceased, were born prematurely and sustained severe and disabling injuries which caused the deaths of Joseph and David Hudak on April 11, 1983, and the death of Michael Hudak on April 12, 1983, after each had undergone great pain and suffering.

A Joint Stipulation of Facts for Purpose of Appeal was filed by the parties on October 25,1988. From this stipulation, we learn that Ann H. Hudak, the plaintiff/mother, had been treated by the defendants for infertility, that the “due date” for delivery of the triplets was August 1, 1983, and that the delivery by Caesarian section occurred on April 11, 1983. The parties further stipulated that the three fetuses, because of their immaturity, were not capable of living outside the womb.

The defendants propounded a first set of interrogatories to the plaintiffs. Interrogatories numbered 52, 57, 58, and 59 all sought information relating to the injuries allegedly sustained by the fetuses. Interrogatory No. 59 sets forth:

59. Describe separately and in detail all injuries sustained by the decedent as a result of the treatment, surgery or examination upon which this action is based.

The Answer set forth immediately below the Interrogatory is:

See Williamsport Hospital and Geisinger Medical Records. Neither hospital records are attached to the Answers to Interrogatories or otherwise included in the certified record before this court.

To state a cause of action for negligence, the plaintiff must plead a legal duty, a breach of that duty, proximate or legal cause, and actual damage or injury. Boyce v. United States Steel Corporation, 446 Pa. 226, 285 A.2d 459 (1971); Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970); Kirby v. Carlisle, 178 Pa.Super. 389, 116 A.2d 220 (1955). An action for negligence lies only if injury or damage is caused thereby. Jeloszewski v. Sloan, 375 Pa. 360, 100 A.2d 480 (1953); Kirby v. Carlisle, supra.

I am unable to extract anything from the Complaints, Answers to Interrogatories, the Stipulation or other pleadings which would even remotely suggest any injury or trauma to any of the three fetuses as a direct result of any action, or failure to act, by the defendant obstetricians. In response to Interrogatory 2(a), requesting that the plaintiff/mother state in detail what injuries were sustained by her as a result of the treatment upon which this action was based, plaintiff Ann H. Hudak responded:

(a) When premature birth of the decedents was imminent, Ann underwent a Caesarian section to improve the chances for survival of the babies. This abdominal surgery resulted in pain, hospitalization, incapacitation, a long recuperative period and scarring.

There is absolutely no suggestion that the Caesarian section procedure was anything but normal, or that the fetuses suffered injury as a result of that procedure.

It is noteworthy that all of the cases reviewed by my distinguished colleagues involve prepartum trauma or injury alleged to have been sustained by the fetus while in the womb of the mother. Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) (injuries received in the womb of the mother); Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981) (mother involved in head-on auto collision, fetus died in útero)', Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966) (electricity passed through body of mother, fetus killed while in womb of the mother); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) (direct trauma inflicted by physician, fetus destroyed in útero), Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960) (mother involved in rear-end collision, fetus born Mongoloid).

Prior to this appeal, all of the cases dealt with the right of a child, or the estate of a child, to institute an action, often a survival and wrongful death action, for injuries suffered while in the womb of the mother. Cf. Amadio v. Levin, supra, 509 Pa. at 207, 501 A.2d at 1089, Opinion of the Court, Papadakos, J. None of the earlier cases presented the threshold issue which I discern on this appeal. Nor have the appellants referred this court to any cases in which, on similar facts, the issue of injury and damage was glossed over.

The parties have stipulated that the three fetuses, because of their immaturity, were not capable of living outside the womb. This being the case, I do not believe that the general allegation of negligence contained in Paragraph 20 of each Complaint is sufficient to plead a cause of action. I do not understand how the “severe and disabling injuries” referred to in Paragraph 20 could have “caused the deaths of Joseph and David Hudak ... and ... Michael Hudak”, where such “injuries” are not further referred to anywhere in the Complaint and the parties have agreed that life was not possible outside the womb.

Since I reach the same conclusion as my esteemed colleagues which would affirm the order dismissing the survival and wrongful death actions, albeit by different reasoning, I concur in the result.

      . In each of these cases, the child involved was either clearly viable or the complaint alleged that the child was viable and the Court accepted that fact as true for purposes of determining whether a cause of action for wrongful death and survival should be permitted. Thus, none of these cases can be construed to mean that, absent the stillbirth of the plaintiff, the cause of action would have been allowed despite non-viability at birth.


author: MONTEMURO, Judge:

text:
    567 A.2d 1100
    Julie LYONS, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed Dec. 28, 1989.

      Stanley R. Krakower, Philadelphia, for appellant.
    Richard B. Koelle, Swarthmore, for appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellant, Julie Lyons, appeals from an order entering judgment on the pleadings, Pa.R.C.P. 1034, in favor of Nationwide Insurance Company (Nationwide) on the basis that the action was commenced beyond the applicable limitations period.

Appellant raises two issues in her Brief on appeal:

(1) Whether the trial court erred in granting Defendant’s Motion for Judgment on the Pleadings on the ground that the applicable period of limitation in this case is only one year.
(2) Whether the trial court erred in holding that Defendant was in no way responsible for the delay in bringing suit where Defendant’s policy language, set forth in the record, led Plaintiff to believe that she could rely on the four (4) year State limitation statute.

In reviewing an order granting judgment on the pleadings, we must limit our consideration to the facts set forth in the pleadings, such as the complaint, answer, reply to new matter and relevant documents, and accept as true all of the well-pleaded allegations of the party against whom the motion is granted. Aughenbaugh v. North American Refractories, 426 Pa. 211, 231 A.2d 173 (1967); Keystone Automated Equipment Co., Inc. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988) allocatur denied, 519 Pa. 654, 546 A.2d 59 (1988); Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 514 A.2d 576 (1986); Gallo v. J. C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 362 A.2d 1094 (1976). Judgment on the pleadings is proper only when no material facts are in dispute. Groff v. Pete Kingsley, 374 Pa.Super. 377, 543 A.2d 128 (1988); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878, 880 (1986), citing Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). “In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleading which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt.” Groff, supra 374 Pa.Super. at 382, 543 A.2d at 130, quoting Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880. Judgment on the pleadings may be appropriate in cases which turn upon the interpretation of a written agreement. Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880; Gallo, supra 328 Pa.Super. at 270-71, 476 A.2d at 1324, quoting DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 546, 456 A.2d 1066, 1070 (1983).

With these standards in mind, we turn to the case before us. The facts, as set forth in the pleadings and relevant documents, reveal the following. On January 25, 1983, appellant suffered loss of some of her personal property while moving to a new home. On January 21,1987, approximately forty-eight (48) months after the loss, she initiated this action against Nationwide for recovery under an insurance policy issued by Nationwide for loss of personal property. The insurance policy contains a one-year limitation of action provision, which reads:

9. Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with and: a. if under coverage of real or personal property, unless commenced within twelve months next after inception of the loss;

Another provision of the policy reads:

11. Terms of Policy Conformed to Statute. Terms of this policy which are in conflict with the statutes of the State in which it is issued are hereby amended to conform to such statutes.

The case was tried before arbitrators who granted an award in favor of Appellant in the amount of $3,977.80. Upon appeal to the trial court, Nationwide was granted judgment on the pleadings.

Appellant argues that the trial court erred in finding that the applicable period of limitation for this action is twelve months. She contends that the effect of paragraph 11 is to conform the twelve month limitations period set forth in paragraph 9 of the policy to the applicable four year limitation period for actions upon a written contract of insurance as provided by 42 Pa. C.S.A. § 5525(8). We disagree.

It is well-settled that a contractual provision limiting the time for commencement of suit on an insurance contract to a period shorter than that provided by an otherwise applicable statute of limitations is valid if reasonable. See Lardas v. Underwriters Insurance Co., 426 Pa. 47, 231 A.2d 740 (1967); Selden v. Metropolitan Life Ins. Co., 354 Pa. 500, 47 A.2d 687 (1946).

Nationwide was required by statute to include clause 9 in the insurance policy. The provisions of the Pennsylvania Code regarding fire insurance contracts, in pertinent part, provide:

... no insurance company ... shall issue a policy affording fire insurance, as defined in this section, on property in this Commonwealth, unless such policy contains the following provisions as to such insurance:
Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or
equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.

40 Pa.S.A. § 636(2).

“Fire insurance,” as used in this section, means “insurance against loss by fire, lightning or removal, as specified in paragraph (1) of subsection (b) of section 202 of this act, as amended, [40 Pa.S.A. § 382(b)(1) ].” Section 382(b)(1) of 40 Pa.S.A. refers to insurance

“[o]n dwelling houses, stores, and all kinds of buildings, and household furniture and other property, — against loss or damage, including loss of use or occupancy, by fire, smoke, smudge, lightning, and explosion, whether fire ensue or not, and by tornadoes, cyclones, windstorms, earthquakes, hail, frost, sleet, snow, or flood; ... against perils to property arising from the ownership or maintenance or from the use of aircraft, automobiles, or other motor vehicles; against loss or damage caused by ... riot, civil war or commotion; ...”

40 Pa.S.A. § 382(b)(1).

The insurance policy issued by Nationwide to appellant falls within these provisions because it insures against loss from fire, lightning, smoke, windstorm, hail, explosion, riot and civil commotion, aircraft and vehicles, vandalism, malicious mischief, and theft.

Thus, Nationwide was required by our Legislature to include the twelve month limitation of action clause in its policy. Our courts have consistently upheld the validity of such limitation of suit provisions required by 40 Pa.S.A. § 636(2). See Schreiber v. Pa. Lumberman’s Mutual Insurance, 498 Pa. 21, 444 A.2d 647 (1982); General State Authority v. Planet Insurance Co., 464 Pa. 162, 346 A.2d 265 (1975); Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 341 A.2d 74 (1975); Lardas v. Underwriters Insurance Co., 426 Pa. 47, 231 A.2d 740 (1967). In Schreiber, supra 498 Pa. at 24, 444 A.2d at 649, our Supreme Court stated that § 636(2) “represents a legislative determination of a reasonable period within which suits may be brought, a careful balancing of the interests of both insurers and insureds.”

We do not read paragraph 11 of the policy to conform the twelve month limitation period to the four year limitation period set forth in 42 Pa.C.S.A. § 5525(8), because paragraph 9 is not in conflict with statutes of Pennsylvania, but rather is in complete conformity with them.

Appellant also argues that she was misled by Nationwide into believing that she could rely on the four year statute of limitations. While it is true that a limitation of suit provision “may be extended or waived where the actions of the insurer lead the insured to believe the contractual limitation period will not be enforced,” Schreiber, supra 498 Pa. at 25, 444 A.2d at 649, quoting General State Authority v. Planet Insurance Co., supra 464 Pa. at 165 n. 6, 346 A.2d at 267 n. 6, appellant’s pleadings contain no facts alleging that Nationwide took any action which could have reasonably misled her into believing that a four year statute of limitation applied to her case. Thus, the second question posed by appellant was not put into issue in the pleadings. In her reply to new matter, appellant simply denies that her claim was barred, without any allegation that she was misled by Nationwide by its inclusion of paragraph 11 in the policy. The first time appellant raises this argument is in her brief on this appeal. She has presented no facts in her pleadings that would pose a question for resolution by a jury, see Patton v. Mack Trucks, Inc., 360 Pa.Super. 1, 7 n. 5, 519 A.2d 959, 963 n. 5 (1986) allocatur denied, 515 Pa. 623, 531 A.2d 430 (1987), nor has she sought leave to amend her pleadings to set forth facts showing that Nationwide misled her. The trial judge properly determined that the record showed no facts indicating that Nationwide was responsible for the delay. But cf. Del Quadro, supra, 293 Pa.Super. at 176-77, 437 A.2d at 1263 (where plaintiff averred that she “was lulled into inaction directly by representatives of the defendant,” her reply to new matter was not so insufficient to warrant judgment on the pleadings).

Since appellant has not sought to amend her pleadings to set forth facts tending to show any misrepresentations or unlawful inducement on the part of Nationwide, we hold that the trial court did not err in granting Nationwide judgment on the pleadings. See Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 361 A.2d 375, 379 (1976).

Order affirmed.

      . The briefs of the parties are not pleadings. Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981).

      . This factor distinguishes the instant case from our decision in Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979), in which we held that although judgment on the pleadings was properly granted by the trial court, the trial court should have permitted appellant an opportunity to amend his reply to aver facts sufficient to avoid the bar of the statute of limitations. Unlike the appellant in Puleo, appellant here did not request an opportunity to amend her pleadings. She did not even raise the argument that Nationwide induced her failure to comply with the limitation clause until the present appeal. We also note that in Diamon v. Penn Mutual Fire Insurance Co., 247 Pa.Super. 534, 372 A.2d 1218 (1977), cited by appellant, the plaintiff, unlike appellant here, had raised the issue of the insurance company’s waiver of the twelve month period by causing criminal charges to be brought against plaintiff at the trial court level.


text:
    567 A.2d 1103
    Elizabeth BLACKWELL, Appellant, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed Dec. 28, 1989.

      Edward F. Silva, Philadelphia, for appellant.
    Michael O’Hayer, Paoli, for appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

In this appeal, we must address an issue of first impression with reference to the Pennsylvania Insurance Guaranty Association Act, Act of Nov. 25, 1970, P.L. 716, No. 232, Art. I § 101 et seq., 40 P.S. § 1701.101 et seq. Although this issue is not without difficulty, we have determined that the trial court correctly resolved it and, accordingly, we affirm.

In March of 1985, appellant Elizabeth Blackwell was involved in an automobile accident while she was a passenger in an auto being operated by Blanche Grebloski. The Grebloski auto was struck by a Ferree Transport tractor trailer being operated by Lee Gilbert. It has been agreed by the parties in this case that Blackwell’s injuries are serious and amount to at least $365,000.00 in monetary damages. At the time of the accident, Ferree Transport and Gilbert were insured by a policy issued by the Carriers Insurance Company. The Carriers policy provided for a maximum limit of $6,000,000.00 in liability coverage. During the pendency of the instant lawsuit, Carriers was adjudicated insolvent. As result of Carriers’ insolvency, both Ferree Transport and Gilbert became “uninsureds.” Thus, Blackwell presented uninsured motorist claims to both her own insurer, Allstate, and to Grebloski’s insurer, State Farm. Blackwell thereafter received the maximum amount for uninsured motorist coverage under each of these two insurance policies: $40,000.00 from State Farm and $25,-000. 00 from Allstate. Blackwell then applied to the Pennsylvania Insurance Guaranty Association (“PIGA”) for payment of her claim against the insolvent Carriers.

As our Supreme Court has recently recognized, the Insurance Guaranty Act was “enacted to give a measure of protection to policyholders and claimants who are faced with financial loss because of the insolvency of certain carriers of property and casualty insurance. Section 102(1) of the Act, 40 P.S. § 1701.102(1).” Bethea v. Forbes, 519 Pa. 422, 424, 548 A.2d 1215, 1216 (1988). Some of the stated purposes of the Act relevant in the instant case are to “provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delays in the payment of such claims, and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” 40 P.S. § 1701.102(1). To these ends, the Act provides that PIGA is “obligated to make payment on the extent of the covered claims of an insolvent insurer ... but such obligation shall include only that amount of each covered claim which is in excess of one hundred dollars ($100), and is less than three hundred thousand dollars ($300,000.00).” 40 P.S. § 1701.201(b)(l)(i). Further, PIGA is prohibited from paying more than the maximum applicable limits of the insurance coverage which had been provided by the insolvent insurance company. 40 P.S. § 1701.103(5)(c). PIGA’s obligation to pay a covered claim is also subject to the following provision:

Non-duplication of recovery

(a) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy.

40 P.S. § 1701.503(a).

There is no question in the present case that Blackwell’s claim is a “covered claim” under the Act, because it stems from a claim against Carriers which remains unpaid due to the insolvency of Carriers. See 40 P.S. § 1701.103(5)(a) (“covered claim” means an unpaid claim, including a claim for unearned premiums, which arises under a property and casualty insurance policy of an insolvent insurer). PIGA’s obligation to Blackwell under 40 P.S. § 1701.201(b)(l)(i) is $299,900.00. As we have stated, Blackwell’s damages are in excess of $365,000.00, and the applicable maximum limit on the insurance coverage which had been provided by Carriers was $6,000,000.00. The only matter to be resolved is whether PIGA’s obligation under 40 P.S. § 1701.201(b)(l)(i) is to be reduced pursuant to 40 P.S. § 1701.508(a), in view of the fact that Blackwell has been able to recover $65,000.00 from other insurance companies as a result of Carriers’ insolvency.

Blackwell’s arguments supporting the position that no reduction in the $299,900.00 obligation should be assessed are aptly and persuasively presented. Blackwell emphasizes that had Carriers not become insolvent, she would have been able to recover in excess of $365,000.00 due to the severity of her injuries and the $6,000,000.00 maximum liability coverage provided by Carriers. Blackwell argues that PIGA exists to prevent financial loss due to the insolvency of an insurer. Thus, Blackwell contends that providing her with the full $299,900.00 from PIGA will provide her with the type and scope of protection from loss which is consistent with the legislative purpose of the Insurance Guaranty Act.

Although we understand the arguments set forth by Blackwell, it is axiomatic that where the words of a statutory enactment are clear and unambiguous, courts must construe the statute according to its plain and obvious meaning. Philadelphia Housing Authority v. Pennsylvania Labor Relations Board, 508 Pa. 576, 499 A.2d 294 (1985); Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 524 A.2d 980 (1987). We have carefully reviewed the language of 40 P.S. § 1701.503(a), and have found it to be unambiguous as a matter of law. Section 503(a) provides that “any amount payable on a covered claim under this act” which, in this case, has been determined to be $299,900.00, “shall be reduced by the amount of any recovery” of insurance coverage which has been received by the claimant due to the insolvency of an insurer. In this case, this latter amount equals $65,000.00. When $65,000.00 is deducted from the $299,900.00, PIGA’s final obligation is to provide Blackwell with the sum of $234,-900.00. Our record indicates that this sum had already been paid to Blackwell by PIGA. If the Legislature had intended the result urged by Blackwell in the present case, they could have easily achieved it by simply stating, in 40 P.S. § 1701.503(a), that “a covered claim under this act shall be reduced by the amount of any recovery ...” of alternative insurance coverage. This they did not do. Instead, the statute mandates that “any amount payable on a covered claim shall be reduced by the amount of any recovery...” of alternative insurance coverage. See 40 P.S. § 1701.503(a) (emphasis added).

There is a. dearth of case law in this Commonwealth concerning 40 P.S. § 1701.503(a). The case law which does exist is not relevant to the case at bar. In Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa. Super. 217, 423 A.2d 1224 (1980), the Court held that Section 503(a) was not applicable because, although the claimant before PIGA had recovered under an uninsured motorist provision in a policy of insurance “other than a policy of an insolvent insurer”, the coverage had not been provided due to the insolvency of an insurer. See also Bullock v. Pariser, 311 Pa.Super. 487, 457 A.2d 1287 (1983). Instead, the coverage in Sands had been provided due to the fact that one of the individuals involved in an auto accident had been uninsured at the time of the accident. Although the Sands Court found Section 503 inapplicable, the Court did cite with approval the decision rendered in Lucas v. Illinois Insurance Guaranty Fund, 52 Ill.App.3d 237, 10 Ill.Dec. 81, 367 N.E.2d 469 (1977). In Lucas, a tortfeasor had insurance with a maximum coverage limit of $20,000.00. Lucas had recovered a judgment against this particular tortfeasor in the amount of $390,000.00. When the tortfeasor’s insurance company became insolvent, Lucas was able to recover $10,000.00 under her own uninsured motorist insurance policy. Her recovery from the Illinois Insurance Guaranty Fund was thus equal to $19,900.00 (limit of tortfeasor’s insurance coverage minus $100.00 deductible) reduced by the $10,000.00 Lucas had already recovered as a result of the insolvency of the insurer. The Lucas Court opined:

There is no inconsistency between the “nonduplication” provision and the purpose of the Act. The statutory purpose is to place claimants in the same position that they would have been in if the liability insurer had not become insolvent____ The difference between the insolvent insurer’s policy limits and the amount paid to claimant by his own insurer is made up by the Fund. To permit a greater recovery than would have occurred had the insurance company remained solvent would both extend the Act beyond its purpose and offend public policy by giving the Act an interpretation which results in a windfall judgment.

Id. at 239, 10 Ill.Dec. at 83, 367 N.E.2d at 471 (citation omitted).

We recognize that the Sands decision clearly stands for the proposition that a claimant will never be placed in a better position by virtue of the existence of PIGA than he would have been in had the insurance company not become insolvent. However, it is equally clear that the Legislature did not intend, in enacting the Insurance Guaranty Act, that in all cases a claimant would be placed in the same position he would have been in had the insurance company remained solvent. Even with the existence of PIGA, it was anticipated by the Legislature that some claimants would suffer some amount of financial loss due to the insolvency of an insurer, because PIGA’s obligation to a claimant is limited to $300,000.00 less the $100.00 deductible. See 40 P.S. § 1701.201(b)(l)(i). Accord Palmer v. Montana Insurance Guaranty Association, — Mont.-, 779 P.2d 61 (1989).

Blackwell has argued that the decision of this Court in Henninger v. Riley, 317 Pa.Super. 570, 464 A.2d 469 (1983), supports her claim against the PIGA for the full $299,-900.00. We disagree. Henninger holds that a claimant may not proceed against PIGA until the claimant has complied with Section 503(a) of the Act by exhausting his claims against other solvent insurers. This decision has little relevancy to the present case, because it is undisputed that Blackwell has satisfied her obligation to exhaust her rights against other solvent insurers.

For all of the foregoing reasons, we affirm the entry of summary judgment in favor of PIGA wherein the trial court determined that PIGA is under no obligation to pay the additional sum of $65,000.00 to Blackwell.

Order affirmed.

      . This is an appeal from the entry of summary judgment in favor of the appellee, the Pennsylvania Insurance Guaranty Association ("PIGA”). Appellant Blackwell instituted the instant declaratory judgment action to obtain a judicial resolution of whether or not the PIGA is obligated to pay the sum of $65,000.00 to Blackwell. The facts underlying this appeal are not in dispute.