text:
    507 A.2d 1233
    Marvin NEEDLEMAN, Eydis A. Needleman and Melissa Needleman by Her Parent and Natural Guardian, Marvin Needleman, Appellants, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1986.
    Filed April 16, 1986.

      Lewis J. Gordon, Philadelphia, for appellants.
    Stephen Yarnell, Pittsburgh, for appellee.
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   WICKERSHAM, Judge:

Marvin Needleman, his wife Eydis Needleman, and their daughter Melissa Needleman, appeal from the order of the Court of Common Pleas of Philadelphia County denying their exceptions to a prior order which denied them certain benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act.

The majority of the facts were set forth by counsel in a stipulation in the court below. On September 8, 1980, Rachael Elyse Needleman, aged 4, was struck and killed by a passing motor vehicle while crossing the street in front of her home. Her sister Melissa, then aged 8 or 9, was standing in close proximity and witnessed the accident. Likewise, the girls’ mother observed the accident from the front window of their home, and the girls’ father, who was exiting from his car in the driveway of their home, also saw the accident. While all three appellants witnessed the accident, none were physically contacted by the motor vehicle which struck and killed Rachael.

Appellants had an automobile insurance policy with Liberty Mutual Fire Insurance Company, appellee herein. As a result of Rachael’s death, appellee paid to appellants $23,-625.00, which represented full survivor’s loss benefits for funeral costs, wage loss, interest and attorney’s fees. Appellee, however, refused to pay appellants’ additional claims of $7260.25 for psychiatric and psychological care necessitated by the distress of witnessing Rachael’s death, and $53,936.00 for the costs incurred as a result of their moving from their home adjacent to the accident scene to a new residence. The move was deemed necessary by appellants’ treating psychologist as an element of their psychiatric care.

On May 19, 1982, appellants filed suit against appellee, seeking no-fault compensation for the above psychiatric and psychological care and costs. Appellee’s refusal to pay was not based upon any question concerning the necessity of the psychiatric treatment, but rather it contended that appellants’ claims were not compensable under the No-fault Act. The lower court agreed with appellee and on April 23, 1985, it entered a verdict in favor of appellee. Appellants filed exceptions to the verdict, which were denied on May 7, 1985. This appeal timely followed.

Appellants raise two issues for our consideration:

1. Are the costs of psychiatric and/or psychological care and treatment received by the parties witnessing the death of a family member compensable under their no-fault insurance policy issued under the Pennsylvania No-fault Motor Vehicle Insurance Act.
2. Are the costs of a medically necessitated move a proper form of therapy and/1 specified procedure or treatment for rehabilitation for which the parties are entitled to payment under § 404 of the Pennsylvania No-fault Motor Vehicle Insurance Act.

Brief for Appellants at iv. Because the lower court concluded that the costs of appellants’ psychiatric and psychological care were not compensable under the No-fault Act, it never reached the question of whether the move was properly included in such care.

The issues before us are both ones of first impression in our Commonwealth. While our appellate courts have grappled with the question of whether and/or when a third party bystander can recover damages for negligently caused mental trauma suffered by them due to witnessing the death, or injury, of a close relative, they have not been faced with the exact issue herein. Unlike these prior cases, the instant case does not involve recovery from the tort-feasor, but rather recover under the No-fault Act. Moreover, what appellants request from appellee, their own insurer, are not survivors’ benefits under section 201(a) of the Act, which they have admittedly received, but basic loss or first party benefits for their psychiatric care and treatment resulting from their emotional distress as “victims” under the Act.

The express policy of the legislature when adopting the No-fault Act was to establish at a reasonable cost to the consumer, a statewide system of “prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). A party seeking to recover basic loss benefits must démon-strate that they come within the statutory scheme of the Act. Section 201(a) of the Act provides that “[i]f the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.” 40 P.S. § 1009.201(a). Section 103 defines “basic loss benefits” as benefits provided “for the net loss sustained by a victim.” 40 P.S. § 1009.103. There is no question that appellants could recover, and have in fact recovered, basic loss benefits on behalf of (as survivors of) their deceased daughter. In order to recover themselves, however, they must be encompassed by the term “victim” as it is used in . the Act.

Section 103 defines “victim” as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” Id. The same section defines “injury” as “accidentally sustained bodily harm to an individual and that individual’s illness, disease, or death resulting therefrom.” Id. Appellants argue that they are “victims” since they suffered “injury”, i.e., “bodily harm,” as a result of the motor vehicle accident which claimed Rachael’s life. Appellants reason that bodily harm is not limited solely to physical harm, but includes mental harm also. They note that no provision of the Act states that a physical impact is necessary for there to be a recovery of benefits.

It is a basic rule of statutory construction that words are to be construed “according to their common and approved usage.” 1 Pa.C.S. § 1903(a). Our court must construe the words of a statute according to their obvious and plain meaning. Frenchak v. Sunbeam Coal Corp., 344 Pa.Super. 37, 495 A.2d 1385 (1985); Brinkley v. Pealer, 341 Pa.Super. 432, 491 A.2d 894 (1985). Furthermore, the plain words of a statute cannot be disregarded where the language is free and clear from all ambiguities. Miller v. Prudential Property and Casualty Insurance Co., 344 Pa.Super. 28, 495 A.2d 973 (1985); Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985).

Webster’s Third New International Dictionary (1981) defines “bodily” as “having a body or a material form; physical, corporeal____ Bodily contrasts with mental or spiritual.” Black’s Law Dictionary (5th Ed.1979) defines “bodily” as “pertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental but corporeal.” Black’s defines “bodily injury” under the injury section as “[pjhysical pain, illness or any impairment of physical condition.” Finally, Black’s defines “mental” as “relating to or existing in the mind; intellectual, emotional, or psychic, as distinguished from bodily or physical.” It is clear that the common and approved usage of “bodily” injury connotes a physical, and not mental, injury. See Watson v. Willey, 23 Pa. D. & C.3d 337 (Erie 1982) (neither mental or emotional distress nor shock or trauma suffered by witness to fatal accident are bodily harm as defined under section 103 of the No-fault Act). “[0]ur legislature did not have in mind that every conceivable injury arising from the use of any conceivable self-propelled vehicle where the accident might occur anywhere in the Commonwealth would result in no-fault benefits under the Act.” Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 194, 463 A.2d 1148, 1151 (1983). Clearly, our legislature limited the coverage of the No-fault Act to bodily injuries caused by the use or maintenance of a motor vehicle.

Applying these definitions, we agree with the lower court’s conclusion that the only “victim” under the Act in this case was the deceased child. Appellants, the sister and parents, were not victims because they suffered no bodily injury. Therefore, appellants’ no-fault benefits are confined to the survivor’s benefits which have already been paid by appellee. This, of course, does not leave appellants without a remedy. While first party no-fault benefits are not available to them, they can still seek recovery for their psychiatric and psychological treatment by means of a third party action against the driver of the automobile. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). We note as a practical matter that a suit by the instant appellants against the tortfeasor filed at the present time would likely be barred by the applicable statute of limitations. The parties do not allege, nor does the record disclose, whether such a suit was ever instituted. But since 1979, the caselaw is clear that a suit for mental trauma against the tortfeasor was a viable cause of action. Whether appellants availed themselves of this possible option, however, is not determinative herein.

As to appellants’ second issue, before any benefits are payable pursuant to section 404 of the Act, 40 P.S. § 1009.404, the court must first determine that the defendant is an “obligor of basic loss benefits.” Since we have already rejected this initial premise on the grounds that appellants are not “victims” because they have not sustained “bodily injury,” we necessarily reject appellants’ additional claim for the costs of relocating their residence.

The order is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . As of February 15, 1985, the total outstanding bill for psychiatric treatment had increased to $7,970.25, due to appellants’ continuing therapy.

      . Pennsylvania tort law regarding bystander recovery for mental or emotional stress has changed significantly over the last twenty years. Prior to 1970, our state adhered to the "impact rule,” which barred recovery for fright, nervous shock, or other mental or emotional stress, unless this stress was accompanied by physical impact, or injury, to the nearby witness. See e.g., Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966). The impact rule even applied to the actual victim of the tortfeasor’s frightening conduct. See, e.g., Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). In 1970, we abandoned the impact rule, overruling the previous cases, and allowed recovery to a bystander who, shocked at seeing his son hit by a car, suffered a heart attack. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Niederman established a "zone of danger,” allowing recovery for shock, mental pain, and physical injuries suffered when the witness was in personal danger from the negligent force and actually feared the physical impact. See, e.g., Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976).
      Early efforts to extend this recovery to a bystander outside the zone of physical danger who witnessed the serious injury or death of a loved one were unsuccessful. See, e.g., Scarf v. Koltoff, 242 Pa.Super. 294, 363 A.2d 1276 (1976). In 1979, however, our supreme court abandoned the zone of danger rule, stating that recovery of damages for negligently caused mental trauma suffered by a bystander cannot be precluded merely because the bystander was outside the zone of danger. Thus, a mother who, from her front door, viewed a car strike and kill her daughter, was not barred from seeking recovery for mental distress because such mental distress under the circumstances was reasonably forseeable. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Efforts to extend the possibility of recovery even further, to emotional injuries suffered by a parent or close relative who did not actually witness the accident have been unsuccessful. See e.g., Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981); Vattimo v. Lower Bucks Hospital Inc., 59 Pa.Cmwlth. 1, 428 A.2d 765 (1981), aff’d in part and rev'd in part, 502 Pa. 241, 465 A.2d 1231 (1983) (recovery for emotional distress not at issue in appeal to Supreme Court); Brooks v. Decker, 343 Pa.Super. 497, 495 A.2d 575 (1985).

      . In Fish v. Gosnell, 316 Pa.Super. 565, 582, 463 A.2d 1042, 1051 (1983), our court stated that:
      [A]lthough a person who suffers only mental injury may be limited regarding his tort remedies, see Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), there is no doubt that a person bodily injured may recover damages for pain and suffering, and that pain and suffering includes mental as well as physical anguish.
      Thus the court seems to distinguish between "mental" injury and "bodily” injury. However, we note that Fish did not involve a bystander claim under the No-fault Act, but rather a claim by the victim himself against the tortfeasor.

      . We note that the courts of New York have permitted coverage for mental anguish under their No-fault Act, which does not require bodily injury, but rather requires a severe injury. Harris v. St. Johnsbury Trucking Co., 57 A.D.2d 127, 393 N.Y.S.2d 611 (1977); Lacomb v. Poland Cent. School Dist., 116 Misc.2d 585, 455 N.Y.S.2d 994 (1982). Similarly, Hawaii has permitted coverage for psychic injury under its no-fault statute which covers all injuries arising out of the use or maintenance of a motor vehicle. Barcena v. Hawaiian Ins. & Guaranty Co., 67 Hawaii 97, 678 P.2d 1082 (1984). Unlike New York or Hawaii, however, our legislature has provided that coverage under our No-fault Act shall only be provided to victims of motor vehicle accidents who have suffered bodily injury.

      . Appellants’ argument that Pa.R.C.P. No. 238 requires this court to construe the term "bodily injury" to include emotional trauma arising from witnessing an injury to a family member was never raised in the trial court. It is well-settled that matters raised for the first time on appeal are not properly preserved for appellate review and will not be considered. Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983). Even if this issue were not waived, however, we find it to be meritless.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    507 A.2d 1237
    COMMONWEALTH of Pennsylvania, Appellant, v. Roxanne Marie WAGNER, Appellee.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed April 14, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.

      Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellee.
    Before CIRILLO, BECK and WATKINS, JJ.
   BECK, Judge:

The Commonwealth appeals from a judgment of sentence. It asserts that the court erred in not sentencing appellee as a second offender of the Drunk Driving Act, 1982, December 15 P.L. 1268, No. 289, § 9, 75 Pa.C.S.A. § 3731. We agree and we vacate the judgment and remand for resen-tencing.

Appellee was arrested on March 30, 1983 for driving under the influence of alcohol and was thereafter placed in the Accelerated Rehabilitative Disposition program (ARD). In a group colloquy on June 24, 1983 before her acceptance of the program, appellee was told that this ARD program would be considered a first conviction if she violated the Act again. She was also told that upon a second conviction she would receive a mandatory minimum jail sentence of thirty days. Appellee accepted the ARD and successfully completed it.

On August 14, 1984, appellee was arrested for driving under the influence of alcohol. She pled guilty on November 19, 1984. The court sentenced her to pay a fine and the costs of prosecution and to a term of 48 hours to be served in ARC House.

The Commonwealth contends that the court was statutorily bound to impose a minimum jail sentence of thirty days. The court’s failure to do so resulted in the imposition of an illegal sentence.

The Act provides for the violation of Section 3731:

(e) Penalty—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

Section 3731(e)(1)(ii) of the Vehicle Code, 75 Pa.C.S.A. 101 et seq.

The Act further provides at Section (e)(2):

(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent convictions of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

The Act is clear. It deprives the court of discretion in setting a minimum sentence when a defendant has previously accepted ARD. We recently held that Section 3731(e)(2) applies to ARD acceptances occurring after the effective date of the 1982 amendment to the Act. Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985). Since appellee accepted her ARD program after this date, the court erred in ignoring the clear wording of the Act in imposing sentence. The court indicated, however, that due process required imposition of this sentence. The court found that appellee was not notified of the consequences of an ARD disposition under the Act before she accepted the program. The record clearly contradicts this finding. Appellee was told that an ARD acceptance would be considered a first conviction for subsequent violations of the Act. Therefore, we must conclude that the court erred in sentencing.

Appellee advances another ground on which to affirm the judgment. She contends that the court cannot impose the thirty day sentence because her acceptance of the ARD program was not alleged in the information filed for this charge. She premises her claim on the rule that the Commonwealth must include prior convictions in its complaint in order to apply a recidivist statute and as a consequence impose a longer jail sentence on the defendant. See Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970); Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980).

This question as specifically applied to the Drunk Driving Act was resolved by an en banc panel of this court in two recent decisions. The en banc panel held that the Commonwealth is not required to allege prior convictions in the information. Commonwealth v. Hess, 348 Pa.Super. 700, 502 A.2d 707 (1985); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985). Although those cases did not involve an ARD acceptance as the prior conviction, we conclude that the reasoning of those cases controls the present question. For sentencing purposes, an ARD acceptance is identical to a conviction for violation of the Drunk Driving Act. Thus, we hold that the Commonwealth was not required to allege appellee’s ARD acceptance in the information.

We conclude that the court erred in not imposing a mandatory minimum sentence of thirty days. We vacate the judgment and remand for resentencing.

Judgment of sentence vacated. Remanded for resentenc-ing. Jurisdiction is relinquished.


author: BROSKY, Judge.

text:
    507 A.2d 1239
    COMMONWEALTH of Pennsylvania, Appellant, v. John Michael POTTS.
    Superior Court of Pennsylvania.
    Submitted Feb. 20, 1986.
    Filed April 15, 1986.

      Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com.
    M. Alberts, Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   BROSKY, Judge.

This is an appeal by the Commonwealth, pursuant to 75 Pa.C.S. § 3731 (e)(4), from the judgment of sentence imposed after appellee pleaded guilty to driving under the influence of alcohol, 75 Pa.C.S. § 3731 (a).. The Commonwealth contends that by sentencing appellee to 48 hours imprisonment and imposing a $300.00 fine, the trial court violated the mandatory sentencing requirements of 75 Pa. C.S. § 3731 (e)(1)(ii), which calls for a minimum term of imprisonment of not less than 30 days for violators with a previous conviction under the section. We agree and remand for resentencing.

Appellee was arrested for drunk driving on February 13, 1984 and submitted to a breathalyzer test which registered a blood alcohol content level of .26%, more than twice the legal limit. At trial, appellee pleaded guilty to a charge of driving under the influence and the trial court sentenced him at the same proceeding. When asked by the trial court whether this offense was appellee’s first, the Commonwealth answered that appellee had completed ARD under the new act and that, for sentencing purposes, the instant offense would be appellee’s second. However, the trial court immediately responded:

THE COURT: No. ARD is not a conviction as far as this Court is concerned. CC8401934A wherein this actor pled guilty to one count of violation of the Motor Vehicle Code, now towit, the 7th day of June, 1984, the defendant in open Court with counsel is sentenced to undergo not less than 48 hours in the Allegheny County Jail; pay costs of prosecution, and pay $300 to the use of Allegheny County, and undergo alcoholic evaluation.

This was clearly a misapplication of the law by the trial court. 75 Pa.C.S. § 3731 (e)(2) defines the term conviction for sentencing purposes under the act:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth, or subsequent conviction.

(Emphasis added). Thus, it is clear that appellee’s ARD in 1983 rendered him a second offender for sentencing purposes. See Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985).

In its opinion prepared for our review under Pa.R.A.P. Rule 1925, the trial court seeks to support its erroneous sentence by claiming that the Commonwealth did not sufficiently prove that appellee’s ARD program commenced on May 6, 1983. We cannot agree. It should be noted that the entire proceeding in front of the trial court, including the court’s acceptance of appellee’s guilty plea, produced a transcript only four pages in length. It is apparent on the face of the record that the trial court did not allow the Commonwealth to provide any evidence with regard to appellee’s prior ARD although that evidence would have been forthcoming. Because of the trial court’s action, the May 6, 1983 starting date for that ARD was not mentioned until the Commonwealth petitioned the trial court for a modification of sentence in accordance with the act.

In this case, the trial court was aware of appellee’s prior ARD and failed to recognize it as a prior offense. This was error because a trial court has no discretion to ignore the mandates of the statute. Commonwealth v. Pryor, 347 Pa.Super. 239, 500 A.2d 811 (1985).

Appellee claims that the trial court did not err in failing to consider his prior ARD, because the information against him did not contain an averment of prior conviction. This argument has been rejected in this Court’s recent en banc opinion in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985).

Judgment of sentence vacated and case remanded for resentencing in accordance with § 3731 (e)(1)(ii). Jurisdiction is relinquished.

      . In Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985), we held that section 3731(e)(2) applied only to ARD cases which arose subsequent to January 15, 1983, and only these ARD cases are equivalent to a conviction for purposes of computing the penalty on subsequent convictions.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    507 A.2d 1241
    SCHNABEL ASSOCIATES, INC., General Partner, t/a Williamsport Building Associates, v. T & M INTERIORS, INC. and Atlantic Carpet Corporation v. DALTON CARPET FINISHING CO., INC. Appeal of ATLANTIC CARPET CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed April 17, 1986.

      Joseph R. Musto, Williamsport, for appellant (at 90) and for appellee (at 91).
    Clifford A. Rieders, Williamsport, for appellant (at 91) and for appellee (at 90).
    W. Hensell Harris, Atlanta, for Schnabel, appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

On July 25, 1984, the Court of Common Pleas of Lycom-ing County filed an order entering judgment in a contract action in favor of appellee Schnabel Associates, Inc. (Schnabel), and awarded damages. Judgment was entered against T & M Interiors, Inc. (T & M), Atlantic Carpet Corporation (Atlantic) and Dalton Carpet Finishing Co., Inc. (Dalton). Cross-claims of Atlantic and Dalton against T & M were denied. Atlantic, however, was found liable to T & M for providing defectively manufactured carpet, and, in turn, Dalton was found liable to Atlantic for improperly applying lamination to the carpet in question. Atlantic (in No. 90 Harrisburg 1985) and Dalton (in No. 91 Harrisburg 1985) filed separate appeals to this order. Since the issues raised in Atlantic’s appeal are identical to issues II and III of Dalton’s appeal, we have consolidated the appeals. Three issues raised by Dalton and discussed below resolve both appeals.

The first issue raised by both Atlantic and Dalton is that the expert testimony given by Schnabel’s expert with respect to delamination strength of the carpet at issue in this action was improper testimony based upon lack of knowledge about the carpet sample and sample size. We disagree. Admission of expert testimony is a matter for the discretion of the trial court, and that court’s exercise of discretion will not be disturbed unless there is a clear abuse. Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). Appellants claim that Schnabel’s expert, Mr. Alan Lightkep, was not absolutely certain that the carpet sample he tested was new, and did not know exactly from where it came. Appellants also complain that Mr. Lightkep did not test three sample pieces of the carpet. Mr. Lightkep testified that he believed the carpet sample he tested was new; that he knew the sample came from the Timberland Apartments; and that it would make no difference in the testing whether the carpet sample was new or had been installed. Further, the test of one carpet sample was valid, and testing other samples would only serve to reinforce the validity of the test. Mr. Lightkep’s testimony that the carpet was defectively manufactured by nature of the absence of sufficient latex was corroborated by the testimony of other experts. Therefore, we find that the admission of Mr. Lightkep’s testimony was not a clear abuse of the trial court’s discretion, and we find no reversible error.

Next, another common question raised by Atlantic and Dalton is whether Schnabel failed to mitigate damages properly and whether the trial court incorrectly calculated damages based upon the evidence. We find that this issue also lacks merit. Appellants claim that appellee failed to mitigate damages when it replaced the carpet in the entire building instead of replacing the carpet in only the damaged areas. The lower court ably countered this argument in finding that although the carpet failure was obvious in only 40 percent of the total apartment complex when it was replaced, “the same carpeting material (with defective lamination) was used throughout the project; the failure of the carpeting was pervasive; and while the failure of the carpeting was slower to materialize on the floor areas where the underflooring was used, it was apparent that the carpeting did not meet minimum contract standards.” See lower court findings, pp. 15-16. We find that appellee’s conduct, viewing all the facts, and circumstances presented at the time the carpet was replaced, was reasonable and proper. See Toyota Industrial Trucks, U.S.A., Inc. v. Citizens National Bank, 611 F.2d 465 (3d Cir.1979).

Appellants further claim that the damages award was improper. They claim the lower court erred in failing to consider the salvage value of the replaced carpet, and in allowing appellee to replace the defective carpet with an higher quality carpet. First, we refer to the lower court findings, page 16, where the lower court expressly states: “Plaintiff entered into a contract with Sears to remove the old carpet and replace it with 24 ounce carpeting at a cost of $9.40 per square yard. The $9.40 price included a credit to Sears for salvage of the carpet which was removed.” No further comment is necessary. With regard to the appellants’ complaint that the appellee wrongfully used upgraded carpet to replace the old carpet, appellants cite Popkin Brothers v. Dunlap, 130 Pa.Super. 50, 196 A. 586 (1938), for the proposition that: “A vendee who is suing for damages for failure to deliver goods of a certain grade may not purchase elsewhere goods of a substantially higher value or better quality than those contracted for and recover from the vendor as damages the difference between the contract price and the price of the higher grade goods, at least not without proof that the more expensive goods were alone available.” Id. While we agree with this statement of law, we do not see how it was violated by the trial court. The trial court did not award as damages the difference between the contract price and the price of the higher grade goods. Instead, the trial court determined the difference between the cost of the higher quality carpet and the cost of the same quality replacement carpet, and subtracted this difference from the actual cost of the replacement. Thus, the damages were adjusted downward to put the appellee in only as good a position as if performance had been properly rendered by appellants. See Denby v. North Side Carpet Cleaning Company, 257 Pa.Super. 73, 390 A.2d 252, 256 (1978). Since the trial court acted in accordance with established law, we find its damages award was proper.

The final issue in this action pertains solely to appellant-Dalton. Dalton argues that the Pennsylvania courts lack in personam jurisdiction over it, as Dalton is a Georgia corporation. Pennsylvania’s courts can exercise in person-am jurisdication over a non-resident defendant if jurisdiction is conferred by the state long-arm statute; and the exercise of jurisdiction under the statute must meet the constitutional standards of due process. Since the Pennsylvania long-arm statute extends to the fullest extent permitted by the Constitution of the United States, in personam jurisdiction is proper when the non-resident has sufficient “minimum contacts” with the state. Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 492 A.2d 23 (1985); see 42 Pa.Cons. Stat.Ann.Sec. 5322 (Purdon 1981). Due process standards are satisfied if these “minimum contacts” are sufficient so that maintenance of the suit does not offend the traditional notions of fair play and substantial justice. International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The “minimum contacts” standard, as pertinent to the case at bar, was recently defined by the United States Supreme Court in World-Wide Volkswagen Corp. v. Woodson, when the Court stated that “minimum contacts” sufficient to confer in personam jurisdiction exist “... if the sale of a product of a (non-resident) manufacturer or distributer ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other states____” In such a case it would not be unreasonable to subject this non-resident to suit in the state in which the non-resident’s goods were marketed if an injury were caused by defective merchandise. 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The facts of the case at bar show that there are sufficient “minimum contacts” with Pennsylvania under the Supreme Court standard to subject Dalton to in personam jurisdiction. Evidence at trial established that Dalton did the finishing work on carpet shipped by Atlantic for a period of twenty years. Atlantic shipped the finished carpet to the 48 contiguous states, including between 100 and 1,000 shipments to Pennsylvania. Dalton obviously intended to serve an interstate market indirectly through Atlantic. Dalton was aware of its work being shipped to Pennsylvania as it was forced on occasion to deal with complaints on its finishing jobs from Pennsylvania. Therefore, Dalton regularly engaged in shipping carpet into Pennsylvania through Atlantic, and this action provided the requisite “minimum contacts” to confer in personam jurisdiction on the Pennsylvania courts.

Finally, it would be useful to apply the guidelines established by this court to determine if “minimum contacts” exist. In Proctor & Swartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 323 A.2d 11 (1974), we held that it must be determined: (1) whether the non-resident defendant has purposely availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws; (2) whether the cause of action arises from defendant’s activities within the forum state; and, (3) whether the acts of the defendant have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. Since Dalton finished carpet for Atlantic, knowing that it would be shipped to other states, including Pennsylvania on between 100 and 1,000 occasions, it clearly availed itself of the privilege of acting within Pennsylvaniaa. This point is reinforced by the fact that Dalton actually travelled to Pennsylvania to inspect the damaged carpet in this case. Further, there is no question that the cause of action arose in Pennsylvania by virtue of Dalton’s indirect shipment of a defectively manufactured latex compound (which rendered the carpet defective) into Pennsylvania. Finally, there was a sufficient connection with Pennsylvania under the “minimum contacts” standard to make the exercise of jurisdiction by the Pennsylvania courts reasonable. Therefore, we find this third issue to be without merit. Since we find no merit in the three issues raised on this consolidated appeal, we affirm the decision of the lower court.

Order affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I join the opinion of the majority as it affirms the trial court’s award of damages and its allowance of testimony by appellee’s expert. I also agree with the majority that Dalton Carpet Finishing Co., Inc. had sufficient contacts with Pennsylvania to render it subject to the jurisdiction of the Pennsylvania courts. For reasons stated in the opinion filed in Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986), however, I am of the opinion that the standards set forth in Proctor & Swartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), are too rigid and no longer provide a valid test for determining the “minimum contacts” necessary to a court’s exercise of in person-am jurisdiction over a nonresident defendant.

      . See Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (Pa.Super.Ct. 1986).

      . The three-pronged test of Proctor & Swartz was criticized in Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 500 Pa. 371, 374 n. 1, 456 A.2d 1333, 1335 n. 1 (1983) (opinion of Roberts, C.J., in support of affirmance). See also: United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 462 A.2d 1300 (1983).


author: McEWEN, Judge:

text:
    507 A.2d 1245
    MANOR JUNIOR COLLEGE, Appellant, v. KALLER’S INC. and John J. Spencer Roofing, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed April 18, 1986.

      William J. Barker, Jr., Philadelphia, for appellant.
    Dean F. Murtagh, Philadelphia, for appellees.
    Before McEWEN, CERCONE and TROMMER , JJ.

       Honorable Evelyn M. Trommer of the Court of Common Pleas of Philadelphia County is sitting by designation of the Pennsylvania Supreme Court.

   McEWEN, Judge:

We here consider an appeal from a compulsory non-suit in favor of one of the appellees, John J. Spencer Roofing, Inc. (“Spencer”), in a suit arising from a contract under which Kaller’s, Inc. (“Kaller”) agreed to perform certain renovation work for appellant and then subcontracted the job to Spencer. We affirm.

Manor Junior College entered into a written contract with Kaller under which Kaller was to install a new roof on a college building. Kaller and Spencer then entered into an unwritten agreement that called for Kaller to supply all of the materials and Spencer to provide most of the workmanship necessary to replace the old roof with a new one. When rainstorm water caused interior damage to the building during the construction of the roof and Kaller did not proceed to take satisfactory preventive measures, appellant ordered Kaller “off of the job” and secured another roofer to install the roof.

Appellant thereafter brought suit against both Kaller and Spencer. The trial judge, prior to the trial, ruled that appellant had failed to state a cause of action in negligence against Spencer and at the conclusion of the testimony refused to submit to the jury appellant’s claim against Spencer under the contract. The claim against Kaller, however, was submitted to the jury which determined that Kaller was liable to appellant. Kaller and appellant had stipulated that, in the event of a verdict in favor of appellant and against Kaller, the damages would be set at the sum of $140,000.00.

Appellant raises the following issues in this appeal:

(1) Whether appellant was a third-party beneficiary of the oral contract between Kaller’s and Spencer.
(2) Whether an implied warranty of reasonable workmanship applies to one who renders construction services but who does not sell a product.
(3) Whether the trial court erred in finding that appellant had failed to state a cause of action in negligence against Spencer.

We note, as we commence our seriatim discussion of the assertions of appellant, that the standard for designation of a party as a third party beneficiary was clearly established by our Supreme Court in Spires v. Hanover Insurance Company, 364 Pa. 52, 70 A.2d 828 (1950), when it ruled that a party does not become a third party beneficiary unless both parties to the contract express an intention to benefit the third party in the contract itself.

To be a third party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third person that the later should be a beneficiary, but both parties to the contract must so intend and must indicate that intention in the contract; in other words, a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; the obligation to the third party must be created and must affirmatively appear, in the contract itself____

Spires v. Hanover Insurance Co., supra, 364 Pa. at 56-57, 70 A.2d at 830-831 (footnote omitted) (emphasis in original).

It is true that our Supreme Court in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), adopted the Restatement (Second) of Contracts Section 302 (1979) as an acceptable method to determine the rights of a person claiming the status of third party beneficiary but, as the court did so, it repronounced the basic principle established in Spires and took pains to make clear that the application of the Restatement was restricted to a quite “narrow class” and is to be seen as a supplement to the Spires standard.

The question posed in Guy v. Liederbach, supra, was whether an individual — who, after being named as a beneficiary as well as an executrix of a will, was directed by the scrivner attorney to witness the will — was a third party beneficiary of the contract between the testator and the attorney since, otherwise, by reason of her role as a witness to the will, the gift to her as beneficiary and the appointment of her as executrix became void. Id., 501 Pa. at 51, 459 A.2d at 746. The eminent Justice William D. Hutchinson quite deftly resolved this perplexing situation when he stated:

While we agree with appellants that the Lucas[] standard is too broad, we nevertheless feel that a properly restricted cause of action for third party beneficiaries in accord with the principles of Restatement (Second) of Contracts § 302 (1979) is available to named legatees, such as appellee, who would otherwise have no recourse for failed legacies which result from attorney malpractice ____ [A] named legatee of a will may bring suit as an intended third party beneficiary of the contract between the attorney and the testator for the drafting of a will which specifically names the legatee as a recipient of all or part of the estate____ [T]he grant of standing to a narrow class of third party beneficiaries seems “appropriate” under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.

Id., 501 Pa. at 51, 459 A.2d at 746-747 (emphasis supplied).

[W]e feel persons who are named beneficiaries under a will and who lose their intended legacy due to the failure of an attorney to properly draft the instrument should not be left without recourse or remedy as they would if appellants’ argument [regarding the standard to be applied] were wholly adopted.

Id., 501 Pa. at 63, 459 A.2d at 752.

We believe that Restatement (Second) of Contracts § 302 (1979) provides an analysis of third party beneficiaries which permits a properly restricted cause of action for beneficiaries such as appellee. In adopting this standard, ... we overrule Spires to the extent that it states the exclusive test for third party beneficiaries.

Id., 501 Pa. at 59, 459 A.2d at 751 (emphasis supplied).

We are not persuaded that this is a case which requires us to apply the Restatement (Second) approach or that Manor Junior College was a third party beneficiary of the unwritten contract between Kaller and Spencer. Rather, we are of the mind that our Supreme Court intended to limit the application of Section 302 of the Restatement (Second) of Contracts to cases involving (1) a legatee resembling the subject of the Guy v. Liederbach decision, and (2) a situation that either closely resembles the subject of that case or is as compelling. Otherwise, the application of the Restatement (Second) approach would extend beyond what the Supreme Court declared to be a “narrow class” and would render rather meaningless the expressed desire of the Supreme Court to refrain from overruling Spires in its entirety. We are simply unable to conclude that the Supreme Court intended to extend the Restatement (Second) approach to a claim based upon so nebulous a source as the unwritten contract here in dispute.

Our course is, thus, to apply the Spires test to the claim of appellant and our application of that standard to this claim compels the conclusion that appellant was not a third party beneficiary of the unwritten contract between Kaller and Spencer. Spencer was aware that Manor Junior College was the site of the job and was the owner of the building upon which the roof was to be installed, but the record does not reflect that the agreement between Kaller and Spencer included the expression by Spencer of any obligation to the college nor any indication by Spencer that the college was an intended beneficiary of the agreement. A scrutiny of the portions of testimony which purportedly establish that Mr. Spencer considered the college an intended beneficiary merely demonstrates that Spencer was aware that the work was to be performed on a building at the college:

Q.: Then sometime after the meeting on the roof with Mr. Ramsden, your firm and Kaller’s, Inc. reached an oral agreement regarding the work your company was to perform; isn’t that true?
Mr. Spencer: Yes.
Q.: And, you had an oral agreement with Kaller’s, Inc. by which your firm agreed to rip up the existing roof of Perpetual Hall at Manor Junior College and apply the Celotex inverted roof, and Kaller’s agreed to do the metal work; isn’t that true?
Mr. Spencer: Yes.
Q.: It was understood by you and Kaller’s, Inc. that the work was to be done for Perpetual Hall at Manor Junior College; isn’t that true?
Mr. Spencer: My understanding counselor, is that I was working for Mr. Kaller’s. He employed me to do a job for him, to rip up a roof and install a new roof.
Q.: But your understanding was that the work was being done on Manor Junior College, Perpetual Hall? Mr. Spencer: Yes.
Q.: And, in fact, the sole purpose of your agreement with Kaller’s, Inc. was for your, for your firm to install the roof at Manor Junior College and to be paid $14,000 to $17,000 for doing so?
[Objections overruled]
Mr. Spencer: $14,000 to $17,000, yes.
Q.: That was the sole purpose of your agreement with Kaller’s, was to install that roof for that price, is that right?
Mr. Spencer: Yes. (N.T. 3.6-3.8)

Therefore, the finding is inescapable that Spencer did not in his agreement with Kaller intend the college as a beneficiary, and the conclusion necessarily follows that the college was not a third party beneficiary of the contract between Kaller and Spencer.

Appellant next asserts that Spencer is liable to it by reason of an implied warranty of workmanlike performance which is alleged to have flowed to Manor Junior College as a result of the work Spencer performed at the college. We disagree. While appellant does not allege that there was any privity of contract between itself and Spencer, appellant does argue that it is covered by an implied warranty even in the absence of privity and relies upon the pronouncements of our Supreme Court in Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968) and Salvadore v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) to support that argument. In Kassab v. Soya, supra, our Supreme Court abolished the requirement of vertical privity in actions for breach of warranty, while in Salvadore v. Atlantic Steel Boiler Co., supra, it eliminated the requirement of horizontal privity in warranty actions. Our Supreme Court eliminated the requirement of privity in these actions, which were brought under the warranty provisions of the Uniform Commercial Code (“U.C.C.”), so as to achieve a symmetry between cases brought in tort under Section 402A of the Restatement (Second) of Torts (1965) and those actions brought under the warranty provisions of the U.C.C. See Williams v. Penn Power Co., 502 Pa. 557, 563-568, 467 A.2d 811, 814-816 (1983).

Thus, it would seem that the lack of privity would not preclude a claim against Spencer provided that such a claim were based upon the warranty provisions of the Uniform Commercial Code or upon Section 402A of the Restatement (Second) of Torts. Appellant has not pleaded a claim under Section 402A of the Restatement (Second) of Torts, but rather urges that the implied warranty of workmanlike performance arose by reason of the applicability of the U.C.C. to the work performed by Spencer. Since, however, Spencer was hired by Kaller to perform a service, specifically, to provide most of the labor for the installation of a roof, we must reject the assertion of appellant that the U.C.C. is applicable. An argument similar to that presently raised by appellant was rejected by the Commonwealth Court in General State Authority v. Sutter Corp., 44 Pa.Cmwlth. 156, 403 A.2d 1022 (1979). There, with reliance upon Kassab and Salvadore the argument was made that the plaintiff was a beneficiary of either an expressed or implied warranty in spite of there being no privity of contract. This argument was rejected on the basis that the case involved neither the U.C.C. nor Section 402A of the Restatement (Second) of Torts. General State Authority v. Sutter Corp., supra at 164, 403 A.2d at 1026. We too are compelled to conclude that, since there was no privity of contract between appellant and Spencer and since this case does not involve the U.C.C. or Section 402A of the Restatement (Second) of Torts, appellant cannot proceed directly against Spencer for breach of an implied warranty. See also Lemley v. J & B Tire Co., 426 F.Supp. 1378 (W.D.Pa. 1977).

Thus, since Manor Junior College was not a third party beneficiary and since there was no implied warranty, the distinguished Judge Paul M. Chalfin properly refused to submit to the jury the assumpsit claims of appellant against Spencer.

Finally, appellant claims that the trial court erred in finding that appellant had failed to state a cause of action in negligence. Appellant’s complaint, entitled “Complaint in Assumpsit and Trespass”, included the following aver-ments:

COUNT III
Manor Junior College vs. John Spencer t/a Spencer Roofing Co.
* * * * * *
40. Upon information and belief, plaintiff avers that the material supplied by defendant Spencer was defective and breached defendant Spencer’s implied warranty of merchantability with respect to such material as set forth in § 2-314 of the Uniform Commercial Code; that the services rendered by defendant Spencer were rendered in an unworkmanlike and negligent fashion in breach of the terms and conditions of the subcontract and the Agreement between plaintiff and defendant Kaller’s, and in breach of a duty owed by defendant Spencer to plaintiff as owner of Perpetual Hall.
41. As a consequence of such breach, plaintiff has suffered damages as specified in paragraphs 11 through 14 of Count I hereof, which are incorporated herein by reference as though the same was set forth at full length.
* * * * * *

A complainant need only state the material facts upon which a cause of action is based. It is the duty of the trial court to discover the cause or causes of action which are supported by the facts alleged. Bartanus v. Lis, 332 Pa.Super. 48, 55, 480 A.2d 1178, 1182 (1984). Here, the trial court properly concluded that paragraphs 40 and 41 of the Complaint cannot reasonably be read as alleging a cause of action in negligence or as alleging facts which would support a cause of action in negligence. While the language employed to describe how the contract was breached includes the terms “unworkmanlike” and “negligent”, the allegations clearly sound in breach of contract and not negligence. No factual allegations appear in the complaint which would support the argument that a cause of action in negligence was alleged. Furthermore, the pretrial statement filed by appellant on June 15, 1982, stated that the nature of the cause of action was “to recover direct, incidental and consequential damages arising from a breach of contract, breach of express guarantee and breach of implied warranty that arose in the summer of 1978”. It seems rather certain, therefore, that a negligence cause of action against Spencer was neither intended nor pleaded by appellant.

Judgment affirmed.

      . Restatement (Second) of Contracts § 302 (1979) states:
      § 302. Intended and Incidental Beneficiaries
      (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
      (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
      (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
      (2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

      . Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, (1961) cert. denied 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962), states the California rule which allows an attorney to be held liable for damages caused by his negligene to a person intended to be benefited by his performance regardless of any lack of privity. The Lucas standard involves a balancing of several factors: the extent to which the transaction was intended to benefit the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty of that harm; and the policy of preventing future harm.

      . Act of November 1, 1979, P.L. 255, No. 86, 13 Pa.C.S. § 1101 et seq.

      . Pa.R.C.P. 1001 (b)(1), effective July 1, 1984, provides: "All claims heretofore asserted in assumpsit or trespass shall be asserted in one form of action to be known as ‘Civil Action’.” This litigation, of course, preceded this enactment.


author: HESTER, Judge:

text:
    507 A.2d 1250
    Amos A. VOLPE, individually and on behalf of a class of similarly situated individuals, Appellants v. UNION FIDELITY LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed April 18, 1986.

      James J. DeMarco, Philadelphia, for appellants.
    Jeffrey S. Rosenblum, Philadelphia, for appellee.
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying certification of class action status to the within matter. For the following reasons, we reverse and remand for a certification hearing.

Appellant, Amos A. Volpe, entered the University of Pennsylvania Hospital on April 11, 1980, for treatment of myocardial infarction and cerebral hemorrhage. Between May 7, 1980, and July 21, 1980, appellant was confined to the rehabilitation unit of the hospital. Appellant sought to recover $3,240.00 for hospital bills pursuant to a senior citizens group policy offered by Union Fidelity Life Insurance Company, appellee herein. Appellee denied coverage based upon its definition of covered hospitalization which specifically excluded payment for confinement in “any institution or part thereof used other than incidentally as a place for rehabilitation____”

Appellant filed the instant action on April 22, 1981, individually and on behalf of a class of similarly situated individuals. After the disposition of preliminary objections to the complaint, appellee filed an answer denying all allegations on August 18, 1981. Appellant thereafter neglected to proceed with any discovery or to take any other action in the case. Consequently, on March 19, 1982, appellee requested that a certification hearing be held within twenty days. One month later, appellant served interrogatories on appellee, requesting information in reference to the class action allegations. Appellee’s answers to the interrogatories included numerous objections to various questions as irrelevant, overbroad, onerous, and burdensome.

On June 21, 1983, appellant filed a motion for sanctions, seeking more complete answers to the interrogatories and a motion for judgment on the pleadings. The latter motion was denied on February 18, 1983, but the trial court refused to rule upon the former motion until it had received proof of appellant’s death. Said proof was not received until a status conference was held on May 17, 1984. After hearing oral argument and requesting supplemental memoranda, the court entered an order denying certification of class action status. That order is the subject of this appeal.

Appellant raises two issues herein. First, he contends that it was error for the trial court to deny certification without a hearing. Second, he argues that the trial court erred in failing to rule on his motion for sanctions prior to entering its order denying certification. We agree with appellant; accordingly, we vacate the order and remand.

Pennsylvania Rule of Civil Procedure 1707 provides:

(a) Within thirty (30) days after the pleadings are closed or within thirty (30) days after the last required pleading was due, the plaintiff shall move that the action be certified as a class action. The court may extend the time for cause shown. If the plaintiff fails to move for certification, the court if so notified shall promptly set a date for a certification hearing.
(b) The court may postpone the hearing to a later date pending the disposition of other motions or to permit discovery with respect to the class action issues.
(c) The hearing shall be limited to the Class Action Allegations. In determining whether to certify the action as a class action the court shall consider all relevant testimony, depositions, admissions and other evidence.

The above-cited language dictates that, in all class actions, a hearing to determine certification is required. See Cribb v. United Health Clerks, Inc., 336 Pa.Super. 479, 485 A.2d 1182 (1985). (“Appellants received a full [certification] hearing as required by the rules of civil procedure____”)

The need for a hearing is embodied in the explanatory note following the rule which states: “A hearing on certification of the action as a class action is mandatory in all cases.” (Emphasis added.) Both the Supreme Court and Superior Court employ comments to rules of procedure when interpreting those rules. See Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Though comments to procedural rules are advisory only, they serve as effective aids in interpretation of the rules and amendments. Commonwealth v. Lewis, 295 Pa. Super. 61, 440 A.2d 1223 (1982).

The above-quoted comment indicates an intent by the Supreme Court, pursuant to its rule-making authority, to deprive the trial court of any discretion in the procedure governing class action certification. The language does not state that the court “may conduct a hearing.” Rather, the rule directs the court to “consider all relevant testimony, depositions, admissions and other evidence,” which can only be derived from a formal hearing, in determining whether to certify the action as a class action.

In its opinion, the trial court acknowledged that Rule 1707 provides that a hearing for certification should be held. However, it stated that “in view of judicial economy and the facts of this matter, it is this court’s opinion that a certification hearing is not necessary.” In so holding, it relied upon Pa.R.J.A. 1901 which provides that “it is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system.”

In effect, the trial court abrogated Rule 1707 by deciding, based upon the facts before it, that a hearing was unwarranted. However, this decision deprived appellant of the opportunity to present additional testimony, depositions, or admissions relating to the class action allegations which may have supported the certification of the case as a class action suit. The failure to accept evidence in addition to the documents previously submitted led to a decision based upon an incomplete record and deprived appellant of his right to the hearing required by the Supreme Court of Pennsylvania.

Moreover, to accept the trial court’s conclusion that a hearing was unnecessary based upon these facts results in the review by this court of that decision as well as the actual decision whether or not to certify. One purpose served by adherence to procedural rules is to necessitate review of the ultimate result only. Otherwise, the appellate courts would be burdened with analyzing whether the rules should have been followed in each case rather than whether justice, as guided by constant procedures, was in fact served. Accordingly, we must vacate the trial court’s order and remand for a certification hearing.

Appellant’s second issue has no merit. At the time the trial court entered its order denying certification, it had not yet ruled upon appellant’s motion for sanctions. Appellee argues that the trial court impliedly ruled upon that motion in its order denying certification. However, since we are vacating that order, any disposition, direct or indirect, of that motion has also been rendered void. The question before us is whether the trial court must dispose of appellant’s motion for sanctions prior to the certification hearing to be held upon remand.

Although it would seem advisable for all preliminary and discovery motions to be ruled upon prior to the certification hearing, Pa.R.C.P. 1707(b) specifically provides that “the court may postpone the hearing to a later date pending the disposition of other motions or to permit discovery____” (Emphasis added). This language clearly leaves to the discretion of the trial court the question whether to dispose of such motions prior to or after the certification hearing. Moreover, the power of a court to impose sanctions for noncompliance with discovery is cast in precatory language and is clearly within the discretion of the trial court. See Pa.R.C.P. 4019; Commercial Trading Co., Inc. v. Milsan Mills Inc., 327 Pa.Super. 407, 476 A.2d 16 (1984). Nevertheless, since additional information which might result from the grant of a motion for sanctions could support the class action allegations, it is preferable to rule upon all outstanding discovery motions prior to the certification hearing.

Order vacated; case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Amos A. Volpe died in December of 1982, and was replaced in this action by his administrator, Anthony Volpe, on March 31, 1983. For convenience, we will continue to refer to Amos Volpe as appellant.

      . The subject policy known as a Medicare Supplement Policy, provides for the payment of benefits commencing upon the 61st day of an insured’s hospitalization during a given benefit period.

      . On July 29, 1981, the trial court entered an order dismissing Count II of the complaint, which constituted a claim for punitive damages and emotional distress.

      . We echo the sentiments voiced by Justice Papadakos in a recent opinion in which he wrote "to express [his] deep concern for the cavalier manner in which lawyers, trial courts, and even appellate courts, have come to regard our Rules of Civil Procedure. More and more, the Rules are being ignored or violated in a laissez-faire attitude of ‘so-what-ism.’" Hoare v. Bell Telephone Co. of Pa., 509 Pa. 57, 61, 500 A.2d 1112, 1114 (1985) (Concurring opinion by Papadakos, J.).


author: CAVANAUGH, Judge:

text:
    507 A.2d 1253
    Dorothy L. CHANDLER, Admx. Estate of Davis King, Dec’d and Queen King, Widow in Her own Right v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raymark Industries, Inc., Forty-Eight Insulation, Nicolet Industries, Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, H.K. Porter Co., Eagle-Picher Industries, Inc., Southern Asbestos Company, Delaware Asbestos and Rubber Co., Fibreboard Corporation, Pabco, Keene Corporation, Glen Alden, Rapid American, Turner Newall Ltd., Keaseey Matison Company, Certain-Teed Products Corp., U.S. Rubber Company, Pacor, Celotex Corporation, Philip Carey Manufacturing Co., Amatex Corporation, Owens-Corning Fiberglas, Asbestos Textile Institute, Uni-Royal, Carolina Asbestos, General Asbestos, Asbestos Textile Company, Thermoid Company, Asten-Hill Manufacturing Co., Rubberoid Company, Appellees. Appeal of Dorothy L. CHANDLER, Admx. of the Estate of Davis King, Dec’d., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed April 22, 1986.

      Joseph D. Shein, Philadelphia, for appellant.
    I. Steven Levy, Philadelphia, for appellees.

      Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

In this case, Davis King and his wife, Queen King, filed a Complaint in assumpsit and trespass in September, 1978, alleging injuries to the husband-plaintiff as a result of exposure to products manufactured by the defendants below while he was employed at the Philadelphia Navy Yard. Mr. King worked at the Navy Yard from 1946 to 1976. The defendants, who are the appellees herein, filed motions for summary judgment based on the theory that the action was barred by the statute of limitations. The court below granted the motion and summary judgment was entered as to all defendants. An appeal was taken to this court by the plaintiffs below.

Pa.R.C.P. 1035(b) provides that summary judgment may be entered: “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978).

Applying these rules, we must determine if the court below erred in deciding as a matter of law that the appellants’ claim was barred by the statute of limitations. The applicable statute of limitations in effect at the time that the cause of action arose was set forth in the Act of June 24, 1895, P.L. 236 § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2), which provides that “The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.”

The appellant alleges in his complaint that he suffered from asbestosis as a result of contact with materials manufactured by the various defendants. The disease of asbestosis has been referred to as a “creeping disease”. See Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). Our court sitting en banc in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) established the rule for determining when the statute of limitations commences running in such cases and stated at 324 Pa.Super. 136-7, 471 A.2d 500:

We find that the statute of limitations begins to run in “creeping disease” cases when the plaintiff knows, or reasonably should know: (1) that he has been injured10, and (2) that his injury has been caused by another party’s conduct.

Cathcart modified the more complex test set forth in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983) which required that before the statute of limitations commenced running that there must be (1) knowledge of the injury; (2) knowledge of the operative cause of the injury and (3) knowledge of the causal relationship between the injury and the operative conduct. While in Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984) a majority of the panel affirmed the Volpe tri-partite test, we agree with Judge Beck’s statement in Wheeler v. Johns-Manville Corp., 342 Pa.Super. 473, 477, 493 A.2d 120, 122 (1985):

We believe that Cathcart should be followed because it is the most recent holding of the court en banc and Berardi, as a panel decision, cannot overrule the court en banc.

Judge Olszewski in his concurring opinion in Berardi, supra, stated that he would apply the less complicated two part test of Cathcart, supra. The recent cases of Price v. Johns-Manville, 336 Pa.Super. 133, 485 A.2d 466 (1984) and Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985) followed the rule in the Cathcart case. See also, McGowan v. University of Scranton, 759 F.2d 287 (CA 3, 1985) Kelly v. Johns-Manville Corp., 590 F.Supp. 1089 (E.D.Pa.1984).

The appellant raises two issues on appeal, contending that the court below erred (1) in determining as a matter of law that the appellant knew he was injured and that the injury was tortiously caused by the defendants, and (2) in holding that signing a workman’s compensation claim conclusively commenced the running of the statute of limitations. With respect to the first issue the appellant argues that under Cathcart v. Johns-Manville, supra, a complaint must be filed “within two years of the date on which plaintiff knows he has been injured and that the injury is the result of someone’s wrongful conduct.” (Emphasis added). (Appellant's brief page 8.) This does not represent a correct reading of Cathcart. We interpreted the rule of Cathcart in Price v. Johns-Manville Corp., 336 Pa.Super. 133, 138-139, 485 A.2d 466, 468, 469, wherein this court speaking through Olszewski, J. stated:

The test defined in Cathcart requires only that a plaintiff reasonably should know “that his injury has been caused by another party’s conduct.”
The discovery rule as defined by Cathcart must stand. Cathcart imposes a duty of diligent inquiry on the plaintiff since it states that the statute begins to run when the plaintiff reasonably should know that his injury was caused by another party’s conduct. The Cathcart Court en banc did not insert the adjective “wrongful” before “conduct” in its formulation of the discovery test. Tolling the statute of limitations until a plaintiff ascertained that his or her injury was the result of someone’s tortious conduct would create an impossible standard of proof and defeat the very purpose of the statute. See Gravinese v. Johns-Manville, 324 Pa.Super. 432, 436, 471 A.2d 1233, 1237 (1984). (Emphasis added.)

The court below was not required to find that the appellant knew or should have known that his injuries were due to the wrongful conduct of the appellees as long as he knew, or should have known that he had been injured and that his injury was caused by someone else’s conduct.

Concerning the second issue raised, the court below concluded that there was no genuine issue as to the fact that the appellant knew or should have known that he had asbestiosis more than two years before the filing of the complaint in September, 1978. The deposition of Mr. King submitted under Pa.R.C.P. 1035(a) in connection with the motion for summary judgment included the following testimony by the deponent:

Q. Mr. King, I would like to show you a record that came with the records we received, it’s Federal Employees Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation. I would like you to look at this.
Q. Have you looked it over?
A. Yes.
Q. Did you ever see that form before?
A. Yes, that’s the one I got at the hospital.
Q. And is that your signature on the form?
A. Yes.
Q. Did you fill this form out?
A. No, the doctor probably filled it out. I only signed it.
Q. Whose handwriting is this in block 14 up at the top, is that your handwriting?
A. Yeah.
Q. The doctor filled that out?
A. Yes.
Q. Do you recall him doing it?
A. Yeah, I was sitting right there when he was doing it.
Q. This is when he told you that you had a lung problem related to your asbestos exposure?
A. Yeah.
Q. Did he then give it to you to sign?
A. Yeah.
Q. Did you read it before you signed it?
A. Yes.
Q. Did you understand what it said?
A. Yeah.

The federal claim for workmen’s compensation referred to above was signed and apparently filed by Mr. King on July 14, 1976. On the workmen’s compensation claim form Mr. King stated that he worked at the Naval Base in Philadelphia, Pennsylvania. In the space marked “cause of injury” he answered “working around asbestos for the past 30 years.” In the block printed “Nature of Illness” he answered “asbestosis”. On the form Mr. King also stated that he was injured at the Philadelphia Navy Yard. He also stated that he “was told by chest specialists ... today that I had asbestos in my lungs.”

The court concluded from the above that the statute of limitations commenced running no later than the date of July 14, 1976, the date on which the workmen’s compensation claim form was signed. On that date the appellant knew that he had asbestosis which was caused by his working around asbestos at the Navy Yard for some 30 years. His doctors had told him that his asbestosis or lung problem was related to the asbestos exposure. To extend the commencement of the statute of limitations to a date later than signing his claim for compensation would be unrealistic in the extreme. The purpose of a statute of limitations is to expedite litigation and discourage delay and the presentation of stale claims which may result in considerable prejudice to the defendant. Harmer v. Hulsey, 321 Pa.Super. 11, 467 A.2d 867 (1983). In the circumstances of this case, the signing of the workmen’s compensation claim focused on a date by which all of the elements of requisite knowledge came together so that the court could justifiably determine that the appellant had two years from that date in which to file his complaint.

The execution of the claim form on July 14, 1976, coupled with the appellant’s testimony on deposition conclusively established that by July 14, 1976, the appellant knew or should have known that he was injured and that the injury had been caused by someone else’s conduct. As suit was commenced more than two years after July 14, 1976, it was barred by the statute of limitations. There are other factors in a creeping disease case which may establish the requisite knowledge called for in Cathcart to commence the running of the statute of limitations other than the filing of a workmen’s compensation claim, but where an injured person signs such a claim and acknowledges that he has asbestosis and that it was caused by working around asbestos, then he conclusively demonstrates that he has the requisite knowledge. A contrary conclusion would make the statute of limitations meaningless in a creeping disease situation.

The appellant contends that under Republic Steel Corp. v. Workmen’s Compensation Appeal Board, 492 Pa. 1, 421 A.2d 1060 (1980) the fact finder must determine whether the statute of limitations has run. This contention is without merit. Republic Steel Corp. v. Workmen’s Compensation Appeal Board, supra, held that the standard of review of agency proceedings by an appellate court is to determine whether there is substantial evidence to support the findings of the agency. The Supreme Court concluded that there was substantial evidence supporting the finding of fact of the Workmen’s Compensation Appeal Board that an injured worker was not fully aware of the seriousness of his condition and that he was totally disabled from pneumoconi-osis until some time after he had filed earlier claims for federal black lung benefits. The Commonwealth Court reversed the decision of the Board and the Supreme Court reversed the Commonwealth Court as the referee’s and board’s findings of fact were supported by substantial evidence and were not arbitrary or capricious. The Supreme Court did not address the issue of whether a court may determine that an action is barred by the statute of limitations as a matter of law in a motion for summary judgment. Indeed here the trial court, unlike the referee in Republic Steel, concluded that there was no genuine issue as to any material fact and therefore concluded that the appellant at least reasonably must have known that he had an injury caused by another’s conduct.

The appellant’s reliance on Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982) is also misplaced. Petri held that the court below, in the circumstances of that case, erred in determining as a matter of law that the appellant’s failure to obtain knowledge concerning her son’s injury was unreasonable. It does not stand for the proposition that the applicability of the statute of limitations can only be determined by a fact finder. Indeed, in DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295 (1983) this court, in an opinion citing Petri v. Smith, supra, affirmed the decision of the court below granting summary judgment in a medical malpractice action on the basis that the action was barred by the statute of limitations. “Whether the statute of limitations has run on a claim is usually a question of law for the judge; however at times, a factual determination by the jury may be required.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. at 140, 471 A.2d at 502. See also Boyle v. State Farm Mutual Automobile Insurance Co., 310 Pa.Super. 10, 456 A.2d 156 (1983).

The court below properly determined as a matter of law that the appellant had the requisite knowledge to commence the running of the statute of limitations no later than July 14, 1976 and the entry of summary judgment was appropriate.

Order affirmed.

      . The husband plaintiff, Davis King, died before taking the instant appeal and Dorothy L. Chandler, Administratrix of the Estate of Davis King has been substituted as a party.

      . The statement of questions involved presented by the appellant were:
      1. Did the Lower Court err when it determined that plaintiff knew enough to start the statute of limitations absent evidence of knowledge that he was injured and that his injury was tortiously caused? (Answered in the negative below).
      2. Have panels of this Court and the Lower Court erred in holding that completion of a workmen’s compensation form conclusively commences the running of the statute of limitations? (Impliedly answered in the negative below).


author: TAMILIA, Judge:

text:
    507 A.2d 1258
    Robert & Elizabeth YATES, Appellants, v. PACOR, INC., Eagle-Picher Industries, J.P. Stevens Co., GAF Corporation, Keene Corp., Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, H.K. Porter Company, Forty-Eight Insulations, Inc., Garlock, Inc., Owens-Illinois Glass Company, Fiberboard Corporation, Owens-Corning Fiberglass Corporation, Pittsburgh Corning Corporation, Nicolet Industries, Inc., Armstrong World Industries, Inc., Nosroc (Formerly G. & W.H. Corson), U.S. Gypsum Flintkote, National Gypsum, Star Industrial, Cooney Brothers, Barker Pipe Fittings, PA Welding Supply, Esco Electrical Supply, Rumsey Electric Company, Herman Goldner, Kent Tile, C.E. McCormick Essex Chemical Corporation, Bondex International, Inc., M. Buten & Sons, M.A. Bruder & Sons, Muralo Company, Inc., I.P.A. Systems, Inc., Carey Canadian.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1986.
    Filed April 25, 1986.

      Daniel G. Childs, Philadelphia, for appellants.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

On June 7, 1983, plaintiff/appellant instituted the instant action by filing a complaint in assumpsit, trespass and admiralty against various manufacturers and suppliers of asbestos products. Appellant alleges he suffers from injuries caused in part by his inhalation of asbestos.

On January 16, 1985, after the original defendants had been served, appellant filed his third reinstated complaint naming, inter alia, appellee, M. Buten and Sons, as an additional defendant. On April 15, 1985, M. Buten and Sons filed preliminary objections to appellant’s reinstated complaint, specifically objecting to appellant’s use of Pa.R.C.P. 1010(b) to effectuate joinder.

The lower court granted M. Buten and Sons’ preliminary objections and dismissed appellant’s reinstated complaint as against this defendant. The court, relying on its prior decision in London v. Pennsylvania Brake Bonding Company, No. 8305-6849 (2268) (C.C.P. March 6, 1985) (C.C.C. May 29, 1985) (Opinion on reconsideration), held that after service of a party defendant, a plaintiff may only effectuate joinder by means other than Pa.R.C.P. 1010(b). The appropriate means of joinder in the case sub judice was determined to be pursuant to Pa.R.C.P. 2232(c); requiring appellant to petition the court for allowance to join defendant, M. Buten and Sons. Additionally, the court conceded it had previously allowed joinder pursuant to Rule 1010(b) regardless of prior service upon any original defendants; thus acknowledging its new finding constituted a reversal.

Appellant now contends the lower court erred in dismissing his reinstated complaint which added an additional defendant under Pa.R.C.P. 1010(b) after other defendants had been served. Appellant urges that a plain reading of Rule 1010(b) permits addition of defendants at the time of reinstatement of the complaint or reissuance of the writ regardless of whether process has been previously served on any of the named original defendants. Pa.R.C.P. 1010(b) provides that:

(b) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint, (emphasis added)

Appellant would have us interpret this to mean that at any phase of an action, a new party defendant may be added merely by reissuing a writ or reinstating a complaint and naming the new party therein. We find it significant that Pa.R.C.P. 401, which replaces former Rule 1010, has added new language apparently refuting appellant’s interpretation. Pa.R.C.P. 401(b) provides, in pertinent part, that:

(b)
(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint.
(2) a writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint, (emphasis added)

The new language in Rule 401(b) unambiguously limits application of the rule to “If service.. .is not made within the time prescribed ... ”. In contrast, we turn to Rule 2232 which is concerned with various aspects of joinder. More specifically, Rule 2232(c) addresses the power of the court to join additional parties and provides, in pertinent part, that:

At any stage of an action, the court may order the joinder of any additional person who could have been joined or could have joined in the action and may stay all proceedings until such person has been joined____

In its entirety then, Rule 2232 exclusively pertains to joinder of parties. Former Rule 1010, and Rule 401, when read in their entirety, primarily address the process whereby a plaintiff may continue the viability of otherwise stale process by reinstatement of the complaint or reissuance of the writ. We agree with the lower court that since Rule 1010 (Rule 401) is chiefly concerned with means of continuing the validity of stale process, Rule 1010(b) “joinder” is properly limited to situations in which a complaint is being reinstated or a writ reissued solely because it was not served on any of the original defendants. In such a situation, Rule 1010(b) “joinder” can be effectuated during the reinstatement or reissuance. However, once a party defendant is served, Rule 1010(b) cannot be used as a joinder device since to do so would ignore the purpose of Rule 1010 and obviate the purpose of Rule 2232. Therefore, once a party defendant is served, plaintiff may only effectuate the joinder of additional parties by means other than Rule 1010(b) (401(b)).

While we agree with the lower court that use of Rule 1010(b) was not appropriate in the instant action, we find application of this ruling to appellant would be unfair. Although proper for the lower court to reverse its prior rulings, retroactive application of the new rule would be severely prejudicial to appellant.

Retroactive application of an overruling decision is a matter of judicial discretion which must be exercised on a case by case basis. August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981). The Pennsylvania Supreme Court, in August, advanced a test for deciding whether an overruling decision will have retroactive or prospective effect. The test balances the hardships imposed upon the parties. In the case before us appellant has no recourse to the Rules of Civil Procedure to effectuate joinder of additional defendant M. Buten and Sons due to expiration of the statute of limitations. Appellant relied upon prior precedent in adding M. Buten and Sons under Rule 1010(b) and will have no remedy if the ruling is applied other than prospectively. For the foregoing reasons, the Order of the lower court in granting the preliminary objections and dismissing appellants’ Reinstated Complaint is vacated and the Reinstated Complaint is hereby restored.

Jurisdiction relinquished.

      . Pa.R.C.P. 1010 is now Pa.R.C.P. 401. Adopted June 20, 1985, effective January 1, 1986. Appellant’s brief and the lower court Opinions were filed prior to the effective date of Rule 401.

      . See Greene v. Pacor, Inc., No. 8301-2391 (1916) (Phila.C.C.P. April 12, 1984); Randall v. Pacor, Inc., No. 8307-4967 (2369) (Phila.C.C.P. March 15, 1984).


text:
    507 A.2d 1260
    COMMONWEALTH of Pennsylvania v. Stephen M. BOYLES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1985.
    Filed April 25, 1986.

      Roy D. Shirk, York, for appellant.
    Richard W. Sponseller, Assistant District Attorney, York, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   McEWEN, Judge:

This is an appeal from a judgment of sentence of ninety days imprisonment imposed after appellant was found guilty of driving while his operating privileges were suspended or revoked in violation of 75 Pa.C.S. § 1543(b). We affirm.

Appellant was arrested on December 17, 1982, for a violation of 75 Pa.C.S. § 3731, (driving under the influence of alcohol or controlled substance) (DUI). Within thirty days thereafter, on January 15, 1982, the following amendments to the Motor Vehicle Code became effective:

(1) The DUI Section, 75 Pa.C.S. § 3731, was revised so as to provide for mandatory sentences for particular violations and declare that acceptance into an ARD program would be considered a conviction in the event of a subsequent conviction for the same offense.
(2) The driving while operating privilege is suspended or revoked section, namely 75 Pa.C.S. § 1543, was amended by the addition of subsection (b) which provided for a mandatory ninety day term of imprisonment where the suspension was the result of driving under the influence.

Thus, any individual who operates a motor vehicle while his or her license is under suspension, as a result of a conviction or of acceptance into the ARD program for driving under the influence, must undergo imprisonment for at least ninety days.

Six months after his arrest and five months after the aforementioned statutory amendments became effective, in June of 1983, appellant was accepted into the ARD program and, in due course, his operator’s license was suspended. On May 5, 1984, while his operating privileges were still under suspension for the DUI offense, appellant was arrested and charged with violation of 75 Pa.C.S. § 1543, driving while operating privilege is suspended or revoked.

Appellant thereafter entered a plea of guilty to the charge of operating a vehicle while under suspension and was sentenced by a district justice, pursuant to the mandatory sentencing provision of 75 Pa.C.S. § 1543(b), to serve a term of imprisonment of ninety days. The distinguished Common Pleas Court Judge James E. Buckingham conducted a de novo proceeding and similarly imposed the mandatory term of imprisonment of ninety days.

Appellant presents two issues for our consideration:

I. Whether the trial court erred in sentencing the appellant under the mandatory sentencing provisions of 75 Pa.C.S. § 1543(b)?
II. Whether under the circumstances 75 Pa.C.S. § 1543(b) is an ex post facto law?

We find that the trial court properly sentenced appellant under the mandatory sentence provision of 75 Pa.C.S. § 1543(b) and that the sentence imposed did not violate the proscription against ex post facto penalties. Accordingly, we affirm the judgment of sentence.

Appellant asserts that by reason of his arrest one month before the amendments became effective, the prosecution against him was based upon the earlier Section 3731, whereas the mandatory prison term called for in the revised version of Section 1543(b) refers only to prosecutions for DUI under the amended version of Section 3731. We disagree.

First, the revised version of Section 3731 did not provide for sweeping or substantial changes and, in any event, the misconduct proscribed remained the same in both versions of that section. Second, when appellant was accepted into the ARD program in June, 1983, he did so subject to all of the conditions and regulations applicable to acceptance into such program which, of course, included the statutory condition that had become effective five months earlier on January 15, 1983, namely, that a mandatory sentence of at least ninety days was to be imposed for operating after suspension. Third, and perhaps most crucial, the statute which appellant violated in March, 1984, was the revised version of Section 1543, a statute that had been in effect some fourteen months, which quite simply directed a mandatory prison term for one who operated a motor vehicle while under a license suspension for operating under the influence. Thus, the court properly sentenced appellant under the mandatory sentencing provision of the revised version of 75 Pa.C.S. § 1543(b).

We also reject the appellant’s contention that the imposition of punishment under the revised version 75 Pa. C.S. § 1543(b) must be voided as an ex post facto penalty. As stated by this Court in Commonwealth v. Riley, 253 Pa.Super. 260, 384 A.2d 1333 (1978):

In general, one of the following criteria must obtain before a statute, or the application thereof will be held invalid as an ex post facto law: (1) the law makes an act criminal which was not criminal when done; (2) the law aggravates a crime, or makes it greater than it was when committed; (3) the law changes a punishment, and makes it greater than it was when the punishable act was committed; and (4) the law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed, in order to convict.

Id., 253 Pa.Superior Ct. at 264, 384 A.2d at 1335 (citations omitted). Appellant argues that the third standard concerning punishment precludes imposition of the punishment provided in the amended version of Section 1543(b). Such an assertion is invalid. There was no change in the punishment provided for in Section 1543(b) between March 5, 1984, when appellant drove while his license was suspended and May 18, 1984, when sentence was imposed. The punishable act here in question is driving while operating privileges were revoked or suspended. As we earlier noted, the mandatory imprisonment provision of Section 1543 had been in effect for approximately five months prior to his acceptance into the ARD program and for more than a year prior to the date of the offense of driving while his operating privileges were suspended. The ex post facto assertion of appellant must, therefore, be rejected.

Judgment of sentence affirmed.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of York County is affirmed.

      . Subsection (b) of Section 1543 now provides:
      (b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
      75 Pa.C.S. § 1543(b).