text:
    586 A.2d 397
    Kathryn JONES, Appellee, v. Joseph TROJAK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1990.
    Filed Dec. 14, 1990.
    Reargument Denied Feb. 22, 1991.
    Petition for Allowance of Appeal Granted July 29, 1991.

      Ronald Ervais, Philadelphia, for appellant.
    Paul R. Beckert, Jr., Bensalem, for appellee.
    Before WIEAND, McEWEN and HUDOCK, JJ.
   WIEAND, Judge:

On January 20, 1988, Kathryn Jones filed a complaint for support against Joseph Trojak in which she alleged that Trojak was the biological father of Katie Jones, a female child born October 30, 1981. At the time of Katie’s conception and birth, however, Kathryn Jones was married to and living with her husband, William Jones. Jones is named as father on the hospital records, as well as on Katie’s birth and baptismal certificates. Thereafter, Kathryn and William Jones lived together with their four children and Katie until April, 1982, when they separated. They were subsequently divorced.

Joseph Trojak met Kathryn Jones in 1979 at a time when Kathryn and William Jones had discontinued sexual intimacies. Trojak and Kathryn commenced a sexual liaison in February, 1980, which continued until Katie was conceived. On or about September, 1984, Trojak began making voluntary support payments for Katie and continued to make payments in gradually increasing amounts until March 13, 1988. In response to the complaint for support, however, he denied paternity, contending that William Jones was the presumed father of Katie.

When the case was tried on June 15, 1988, the trial court ordered the parties, together with Katie and William, to undergo blood tests to aid in determining paternity. Trojak objected. He contended that the complainant had failed to rebut the presumption of William’s paternity and that blood tests, therefore, were unnecessary. His objections were overruled, and blood tests were thereafter administered. The results demonstrated that William cannot possibly be Katie’s father and that Trojak shares genetic markers with Katie which give rise to a probability of 99.9% that he is the biological father. On October 26, 1988, the court adjudged Trojak to be Katie’s father. An appeal was filed but discontinued after the trial court granted a new trial. At the same time, the trial judge recused himself from further participation in the proceedings.

A second trial was held on June 13, 1989. In response to objections to use of the prior blood test results, the court, on June 19, 1989, entered an order that the prior blood tests had been properly ordered and that the results would be considered in determining paternity. The order also directed the parties to advise the court if additional hearings were required. It is from this order that the present appeal was filed. A motion to quash the appeal was denied by a single judge of the Superior Court. Thereafter, on January 11, 1990, the trial court filed an opinion and order adjudicating that Trojak was Katie’s natural father. The trial court did not enter an order of support, however, and a separate appeal was not taken from the order adjudicating paternity. Nevertheless, the parties have requested this Court to review not only the order from which the appeal was taken but also the adjudication of paternity.

Whether the trial court’s order of June 19, 1989, was appealable is not free from doubt. A motion to quash, however, was denied by a judge of this Court, and that ruling was not reviewed by the full Court. The issue of appealability, moreover, was not again briefed or argued by the parties. Under these circumstances and in the interests of judicial economy and fairness to the parties, we will consider this appeal on its merits.

After careful review, we hold that the blood tests were properly obtained. However, the test results were not properly proved at the second trial. Therefore, the trial court erred when it ordered that the results would, be considered in determining paternity.

The presumption that a child conceived and born during a marriage is a child of the mother’s husband is one of the strongest presumptions in the law. John M. v. Paula T., 524 Pa. 306, 313, 571 A.2d 1380, 1384 (1990), cert. denied, — U.S.-, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Manfredi Estate, 399 Pa. 285, 289, 159 A.2d 697, 699 (1960); Scott v. Mershon, 394 Pa.Super. 411, 413, 576 A.2d 67, 68 (1990); Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984). Traditionally, courts have permitted the presumption to be overcome only by evidence which clearly and convincingly establishes “non-access or that the husband was impotent or had no sexual intercourse with his wife at any time when it was possible in the course of nature for the child to have been begotten.” Commonwealth ex rel. Ermel v. Ermel, 259 Pa.Super. 219, 221, 393 A.2d 796, 797 (1978), quoting Cairgle v. American Radiator & Standard Sanitary Corp., 366 Pa. 249, 255, 77 A.2d 439, 442 (1951) (citations omitted). See, e.g., John M. v. Paula T., supra, citing Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989); Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1957); Cairgle v. American Radiator & Standard Sanitary Corp., supra; Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978). However, since the adoption in Pennsylvania of the Uniform Act on Blood Tests to Determine Paternity (The Uniform Act), 42 Pa.C.S. §§ 6131 et seq., the presumption of a husband’s paternity may also be overcome, under the provisions of 42 Pa.C.S. § 6137, by blood tests which exclude him as the possible father. Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986). See also: Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962) (Uniform Act of 1961 applies to action for support of minor children born during wedlock).

Recently, the application of the Uniform Act was limited by judicial decision. In John M. v. Paula T., supra, the Pennsylvania Supreme Court held that a putative biological father, seeking custody or visitation, could not compel blood testing to rebut the presumption of a husband’s paternity where, despite evidence of the mother’s extramarital sexual relationship, the mother, child and husband had been living together as a family and the husband had assumed parental responsibility. Similarly, in Scott v. Mershon, supra, a panel of this Court held, in an action for child support against the putative father, that the mother was not entitled to compel blood testing to determine the putative father’s paternity where the family unit was intact and her husband had assumed parental responsibility.

Instantly, we are not confronted with an intact family in need of protection. Kathryn Jones and her husband separated and were divorced shortly after Katie’s birth. Moreover, Kathryn declined to accept contributions to Katie’s support from her husband and, instead, received such contributions from Trojak. Under these circumstances, the John M. and Scott v. Mershon decisions do not bar the use of blood tests.

An order compelling the alleged father to submit to blood tests is authorized by 42 Pa.C.S. § 6133 in any matter in which paternity is a relevant fact. Section 6133 provides as follows:

In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

Paternity is a relevant fact in this support action. See: Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 301, 558 A.2d 548, 551 (1989) (en banc), citing Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987). Compare: Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990) (in action for child support from putative biological father, paternity not a relevant fact for purpose of obtaining blood tests if mother estopped from denying husband’s paternity because he had consented to paternity by holding child out as his own and/or providing financial support); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989) (in action for child support from putative father, paternity not a relevant fact and blood tests not authorized where plaintiff’s first husband had previously been ordered to provide child support); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988) (in mother’s custody action, paternity not relevant fact and blood tests not authorized where husband had assumed parental responsibility with knowledge that his biological paternity was questionable).

We reject appellant’s contention that a factual and truthful determination of Katie’s paternity is irrelevant because of the presumption that she was fathered by her mother’s husband. Neither Katie’s mother nor her husband acted in a manner following Katie’s birth so as to estop either Katie or her mother from making a claim for child support against appellant. Compare: Christianson v. Ely, supra; In re Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976) (where husband had assumed parental responsibility for child born during coverture mother estopped from later questioning paternity); Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969) (where husband acknowledged child born during coverture as his own and provided for child’s support in separation agreement he was estopped from later denying paternity). In the instant case, except for a brief period following her birth, Katie was not treated as if she were William’s daughter.

A determination regarding appellant’s paternity is necessary to a resolution of the child support claim made by Katie’s mother in this case. A determination thereof may be made on the basis of properly admitted blood test results, as well as other evidence relevant to establish paternity. The trial court did not err in finding that the blood tests had been properly obtained.

However, blood test results may be considered as evidence only if the results are adequately proved. The general rule with respect to the admission of medical test results was stated in Commonwealth ex rel. Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977), as follows:

A long line of Pennsylvania cases has held that ‘... reports of investigators, agents, and doctors cannot be received in evidence, or considered by the court, in a contested case, [citations omitted]. The investigators, agents, doctors, etc., must themselves be produced, sworn and examined as witnesses and be subject to cross-examination ... ’ Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943). See also, Commonwealth ex rel. Rubertucci v. Rubertucci, 159 Pa.Super. 511, 49 A.2d 269 (1946); Commonwealth ex rel. Balick v. Balick, 172 Pa.Super. 196, 92 A.2d 703 (1952); Commonwealth ex rel. Mathis v. Cooper, 188 Pa.Super. 113, 146 A.2d 158 (1958). The right of a litigant to in-court presentation of evidence is essential to due process: ‘In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.’ Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, [1021], 25 L.Ed.2d 287 (1970) (citing extensive authority).

Id. 246 Pa.Super. at 469-470, 371 A.2d at 932-933, quoting Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974). The proper procedure for proving paternity blood test results is established by Section 6134 of the Uniform Act which states as follows:

The tests shall be made by experts qualified as examiners of blood types, who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts qualified as examiners of blood types perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court.

42 Pa.C.S. § 6134. In Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), a panel of this Court ruled that in order to use the results of HLA (Human Leukocyte Antigen) tests to determine the probability of an alleged father’s biological paternity, a proper foundation had to be laid. The Court stated:

The party seeking to affirmatively use the HLA results should show:
1. the effect of racial and ethnic variables.
2. any factors which might invalidate the test or affect its accuracy (for example, the AMA-ABA Guidelines indicate that HLA results are most reliable when the test is conducted in conjunction with other blood group tests.)
3. the procedures of the actual test.
4. the qualifications of witnesses.
Of course, the foundation laid must suit each case and we do not consider these guidelines exhaustive.

Id., 312 Pa.Superior Ct. at 164, 458 A.2d at 565.

In the instant case, a printed report of the blood test results was issued by the laboratory which had performed the tests. However, the record does not contain medical testimony interpreting the test results, and it does not appear that the parties stipulated to the admissibility of the laboratory report. See: Tyler v. King, 344 Pa.Super. 78, 88, 496 A.2d 16, 21 (1985) (necessity for expert testimony under § 6134 waived where parties stipulated that blood test results were admissible as some evidence of paternity). Appellant’s counsel stated that if the court should order testing before the second trial, there would be no need to repeat the blood tests which had previously been made. This statement, at most, suggested the absence of objection to the laboratory and methodology employed. The appellant did not thereby waive his right to have the evidence against him properly authenticated and proved. In the absence thereof, the results of the test could not properly be considered.

It is well established that “once a party takes an appeal to an appellate court the trial court is divested of jurisdiction over the subject matter until further order of the appellate court reinstating jurisdiction.” Ingram v. Dovertown Estates, Inc., 307 Pa.Super. 22, 26, 452 A.2d 884, 886 (1982), citing Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982). See also: Pa.R.A.P. 1701(a); Corace v. Balint, 418 Pa. 262, 275-276, 210 A.2d 882, 889 (1965) (error for trial court to modify or reverse an order from which appeal has been taken); Sowers Estate, 383 Pa. 566, 573, 119 A.2d 60, 64 (1956); Kingsley Clothing Mfg. Co. v. Jacobs, 344 Pa. 551, 553, 26 A.2d 315, 316 (1942). Because the appeal in this case had vested jurisdiction of this case in the Superior Court, the trial court was without jurisdiction to make a final finding of paternity on January 11, 1990. An appeal from the court’s order of June 19, 1989, was then pending in the Superior Court.

The right of the trial court to proceed to a determination of paternity was not authorized by Pa.R.A.P. 1701(b)(6). This rule permits a trial court to proceed further “in any matter in which a non-appealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.” In the instant case, however, appellee had filed a motion to quash the appeal from an alleged interlocutory order, and the motion to quash had been denied. As such, jurisdiction had vested in the Superior Court and was no longer in the trial court at the time when the trial court attempted to adjudicate the paternity issue. The court’s order of January 11, 1990, therefore, is a nullity.

Upon remand, the trial court may receive additional testimony to aid it in making a determination of paternity. In any event, a new determination of paternity must be made. Thereafter, a final order awarding or denying support can be entered.

The order of June 19, 1989 is reversed, and the case is remanded to the trial court for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

      . This section provides as follows:

        § 6137. Effect on presumption of legitimacy
      The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.

      . The ancient rule that a wife or husband cannot testify to sexual non-access to overcome the presumption of legitimacy has been criticized as "an absurdity, arbitrary, illogical, and an eccentric incompetency” and has been rejected by a panel of this Court in Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 564 n. 4, 344 A.2d 624, 626 n. 4 (1975).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    586 A.2d 402
    Melvin SPIVACK and Ann M. Spivack, Appellants, v. BERKS RIDGE CORPORATION INC. and BRCM Corporation, Berwind Corporation, Berwind Realty Services, Inc., Berwind Development Services Inc., Breyer Woods Limited Partnership, Bervest of Pennsylvania Inc., Breyer Real Estate Development Company, David Huston and Robert E. Tait.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1990.
    Filed Dec. 27, 1990.
    Reargument Denied Feb. 12, 1991.
    As Revised Feb. 19, 1991.

      J. Kurt Straub, Philadelphia, for appellants.
    Cliff Russell, Ambler, for appellees.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellants Melvin and Ann Spivack, plaintiffs below, appeal from Orders denying their motion to compel discovery and sustaining the appellees’ preliminary objections, entered July 26, 1989 and February 9, 1990 respectively.

On May 5, 1987, the appellants entered into a contract with appellee Breyer Woods for the sale of a yet to be constructed condominium. The parties closed the deal on January 12, 1988. On January 13, 1989, the appellants filed a complaint against appellees alleging the unit sold to them, as constructed, marketed and developed, was deficient, and alleging specifically the following defects: inadequate insulation; inadequately designed heating and air conditioning; and undersized, improperly located heating unit and gas furnace which failed to meet industry standards. The appellants’ complaint included the following six counts:

COUNT I Breach of contract against sellers.
COUNT II Negligent construction and design against builder/general contractor of heater and HVAC system.
COUNT III Breach of warranty against builder/general contractor.
COUNT IV Breach of warranty against sellers.
COUNT V Fraud against all defendants.
COUNT VI Conspiracy to defraud against all defendants.

The appellants contend all issues now presented are appropriately before this Court as they stem from a final, appealable Order (February 9, 1990, sustaining preliminary objections) thereby extending the scope of appellate review to the entire record. Appellant urges further the following errors of law: 1) motion to compel discovery was improperly denied; 2) court improperly ordered appellants to file more specific pleadings to counts I and IV; 3) court erroneously dismissed Counts II and III as against the builders for lack of a contractual relationship as there exists implied warranties of habitability and reasonable workmanship in all sales of newly constructed homes; and 4) the court erroneously determined there was no basis for the allegations of fraud and conspiracy to commit fraud.

The appellees argue, and we agree, that the Order sustaining appellees’ preliminary objections, while granting appellants’ leave to replead two counts, does not constitute a final Order subject to appellate review in its entirety. A final Order is one which ends the litigation, or, in effect, disposes of the entire case. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). As a general rule, an Order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Id. More recently, this Court has held that even when a court sustains preliminary objections in the nature of a demurrer, that action is not final and appealable where the trial court grants leave to amend the complaint. Lictenwalner v. Schlicting, 380 Pa.Super. 504, 552 A.2d 302 (1989). When the dismissal of one or more counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the Order sustaining the preliminary objections is final with regard to those causes of actions dismissed. Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 500 A.2d 163 (1985).

In light of the aforementioned cases, this Court finds the Order sustaining appellees’ preliminary objections final and appealable only with regard to those counts which the trial court dismissed. That part of the February 9, 1990 Order granting leave to amend Counts I and IV is interlocutory and not properly before this Court.

Next appellants argue the court erred by dismissing Counts II and III, negligence and breach of warranty, as against the builder/general contractor of the condominium in question. In dismissing the negligence cause of action, the court discussed the elements of negligence and found the builder/contractor owed no duty to the appellants. We affirm the court’s decision dismissing the negligent cause of action, however, on different grounds. See Gutman v. Giordano, 384 Pa.Super. 78, 557 A.2d 782 (1989).

The general rule of law is that economic losses may not be recovered in tort (negligence) absent physical injury or property damage. Aikens v. Baltimore & Ohio R. Co., 348 Pa.Super. 17, 501 A.2d 277 (1985); Hammermill Paper Co. v. C. T. Main Construction, Inc., 662 F.Supp. 816 (1987). The record herein offers no indication of either personal injury to the appellants or property damage to their condominium resulting from the builder/contractor’s actions or lack thereof.

However, with regard to the breach of warranty action, we hold the trial court erred in its dismissal and, accordingly, reverse. Privity of contract is not required to assert a breach of warranty claim against the builder of a new residential unit. Spencer v. Leo S. Firanski & Son, Inc., 67 Pa.D. & C.2d 235 (1974); Skretvedt v. The Maple Corporation, 72 Pa.D. & C.2d 637 (1974). In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1971), our Supreme Court ruled that a builder/vendor impliedly warrants that the house he has built and is selling is constructed in a reasonable workmanlike manner and that it is fit for habitation. Such warranties arise by operation of law, independent of any contractual representations. Although this Court has not heretofore ruled on whether implied warranties extend from a builder of a residential unit to the initial purchaser-user when the builder is not also the seller, logic requires such a finding. This Court having previously found an implied warranty exists from the builder/vendor of a new house to his vendee (herein the developer), sees no logical reason to limit the builder’s warranty to his immediate vendee. Where the builder knows or should know that that particular purchaser will not be the first user, as in the instant matter, any implied warranties must necessarily extend to the first user-purchaser, herein the appellants. Warranties of habitability and reasonable workmanship are not created by representations of the builder/vendor but rather are implied in law and, as such, exist independent of any representations of a builder/vendor. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). See also Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984).

Lastly, with regard to the Order sustaining preliminary objections, appellant argues it was error to dismiss the fraud and conspiracy to commit fraud counts as all essential elements thereof were properly pleaded. In dismissing these causes of action, the court reasoned the allegations were more properly the bases for claims under breach of contract or breach of warranty theories, and determined the record failed to support a basis for a charge of fraud or conspiracy to defraud. We agree.

A cause of action in fraud must be pled with particularity. Pa.R.C.P. 1019. Fraudulent misrepresentation involves knowing or reckless communication of misrepresentation and will be found when the representer knows that the matter is not as it is represented to be. Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988). The appellants’ complaint fails to set forth with any degree of particularity alleged misrepresentations made by the appellees. There is nothing of record to support an averment the appellees knew, for example, the heating system would, as alleged, be inadequate to satisfy the appellants’ desired comfort level. As the appellees point out in their brief, the appellants cannot generally argue in good faith the appellees committed fraud or conspired to commit fraud with regard to “deficiencies and defects described above” when, for example, one such defect is the alleged misplacement of heating ducts, the location of which was directed by the appellants. {See appellants’ complaint, paragraphs 18(i) and 43.) We agree with the trial court in finding Counts V and VI to be without merit and find they were properly dismissed.

Appellant also appeals from the Order denying their motion to compel discovery. We find this Order to be interlocutory in its entirety and not now subject to review by this Court. The Order does not purport to eliminate discovery or preclude the appellants from seeking some or all of the information sought at another time or in another form. Nor does this Order “put the appellants out of court” with regard to the litigation at bar. As this Court stated:

As a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action.

McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 410, 493 A.2d 84, 87 (1985). There are no unusual or exigent circumstances warranting our review of this Order prior to the resolution of all of the appellants’ claims by the trial court. This portion of the appellants’ appeal is, according, quashed.

After a careful review of the record with regard to the February 9, 1990 Order sustaining appellees’ preliminary objections, we hold only Counts II, III, V and VI, which were dismissed by the trial court, are now properly before this Court. Counts I and IV, which the court granted appellants leave to amend, are interlocutory and not within our scope of review. The court’s decision dismissing Count II, negligence against the builder/contractor, is affirmed, while the decision dismissing Count III, breach of warranty, is reversed. We affirm the trial court’s dismissal of Counts V and VI, fraud and conspiracy to commit fraud. Finally, we find the appeal from the July 26, 1989 Order denying appellants’ motion to compel is not ripe for our review and is, accordingly, quashed.

Appeal as to the July 26, 1989 Order is quashed.

Appeal quashed as to those portions of the February 9, 1990 Order which dispose of Counts I and IV of the complaint.

Order affirmed as to those portions of the February 9, 1990 Order which dispose of Counts II, V and VI of the complaint.

Order reversed as to that portion of the February 9, 1990 Order which disposes of Count III of the complaint.

Jurisdiction relinquished.

      . The appellants were, however, granted leave to file more specific pleadings with regard to paragraphs 18 and 19, the ad damnum clauses and Counts I and IV of the complaint. Counts II, III, V and VI were dismissed.

      . General partners of Breyer Woods, which conveyed the unit to the appellants, are Bervest and Breyer Real Estate.


author: JOHNSON, Judge:

text:
    586 A.2d 406
    COMMONWEALTH of Pennsylvania v. Keith MOYE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1990.
    Filed Dec. 27, 1990.
    Reargument Denied Feb. 27, 1991.
    Petition for Allowance of Appeal Denied July 11, 1991.

      Jules Epstein, Asst. Public Defender, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant Keith Moye was convicted by a jury of Conspiracy, 18 Pa.C.S. § 903, and sentenced to five and one-half to twelve months’ incarceration. He appeals from the Judgment of Sentence, alleging that the trial court erred in refusing to suppress evidence obtained during his arrest. We are asked to determine whether an officer’s momentary exit from a residence to secure back up invalidates an otherwise legal arrest. We hold that such an arrest is valid and, accordingly, affirm.

On November 12, 1988, at approximately 3:50 p.m., Officer Mary Williamson of the Philadelphia Police Department went with several other officers to a row house located at 2039 Federal Street in Philadelphia, Pennsylvania. The row house consisted of one apartment on the first floor and two apartments on each of the second and third floors. Officer Williamson knocked on the door of a second floor apartment while the other officers waited on a common stairway. John Bundy answered the door, opening it approximately two feet. Officer Williamson saw Moye sitting at a table putting a white powder into green tinted plastic bags. Officer Williamson asked Bundy for a “dime,” referring to a ten dollar bag of cocaine. Bundy turned to Moye, who handed him a bag which was given to Officer Williamson. Officer Williamson gave Bundy two pre-recorded five dollar bills in return. During this exchange, Officer Williamson observed a plate with a razor blade and a number of empty bags in front of Moye.

When the transaction was complete, Officer Williamson stepped away from the door and into the hallway. After the door to the apartment closed, Officer Williamson signalled the other officers to join her. She and Officer Gillespie announced that they were police officers and reentered the apartment. After struggling with Bundy, Gillespie arrested him and recovered a handgun and $45.00 dollars including the two prerecorded bills. Williamson confiscated a plastic bag containing 15.3 grams of cocaine, an additional 51 green tinted bags containing a white powder, four vials of crack cocaine, 138 empty green tinted bags, and a grinder. Following a jury trial, Moye was convicted of Conspiracy. Timely Post-Trial Motions were filed and denied. This appeal follows.

Moye contends, on appeal, that once Officer Williamson left the apartment and the door was closed, her return with the other officers was a warrantless and constitutionally prohibited entry, since there were no exigent circumstances or consent. The Commonwealth argues that the initial consent to the undercover agent’s entry extended to the second entry moments after the transaction. The Commonwealth further argues that this was an exigent circumstance which entitled officers to arrest without a warrant.

We look first to the issue of whether the initial consent to Officer Williamson’s entry extended to the second entry. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. See Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978). Where an arrest is made in a home, a warrant is generally required. Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, neither Williams nor Payton address a consensual entry of a police officer into a residence. Payton specifically held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Payton, 445 U.S. at 576, 100 S.Ct. at 1374-75, 63 L.Ed.2d at 644. Similarly, in delineating the elements of an exigent circumstance, Williams presupposes that the entry was not consensual. Neither Williams nor Payton nor any case to which Moye directs us confronts the issue of whether, once entry has been obtained through the consent of the suspect, a subsequent entry is permitted, absent exigent circumstances or a warrant.

Neither party contends that Officer Williamson’s original entry into the apartment was unconstitutional. The Fourth Amendment protections against official intrusion are inapplicable where the intrusion is consensual; and, consent is not vitiated though obtained by stratagem or deception. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), reh’g. denied, 386 U.S. 939, 87 S.Ct. 951, 17 L.Ed.2d 811 (1967); Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Kingston Realty, Inc., 86 Pa.Cmwlth. 123, 484 A.2d 203 (1984); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert. denied, Morrison v. Pennsylvania, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); United States v. Paul, 808 F.2d 645 (7th Cir.1986). Once the sale of cocaine was made, Officer Williamson, being lawfully within the apartment, had a right to arrest both Moye and Bundy and seize anything that was in plain view. Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Jerry, 323 Pa.Super. 299, 470 A.2d 601 (1983). We must decide, therefore, whether this right to arrest continued while Officer Williamson went to the stairway to obtain “back up,” despite the closing of the apartment door during her momentary absence. This issue is one of first impression.

In United States v. Janik, 723 F.2d 537 (7th Cir.1983), an agent was invited into a residence to see a submachine gun which Janik claimed was purchased from a known burglar. Upon seeing the weapon, the agent left the apartment and signaled other officers via a transmitter which he was carrying. Janik was arrested in the lobby, and the weapon inside the residence was seized. In holding that Janik was not entitled to suppression of the weapon, the court wrote:

A guest who stays within the part of the premises to which he is invited does not invade his host’s privacy, as is shown by the cases discussed in Coolidge v. New Hampshire, 403 U.S. 443, 465-72, 91 S.Ct. 2022, 2037-41, 29 L.Ed.2d 564 (1971), which allow arresting officers to seize things in plain view without either a warrant or a justification for not having one. See also, Texas v. Brown, [460 U.S. 730], 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The fact that [the officer] got help from other officers in removing the submachine gun can make no difference. United States v. White, 660 F.2d 1178, 1183 (7th Cir.1981). Not only was the incremental invasion of privacy trivial, but if [the officer] was privileged to slip the gun underneath his jacket and leave the apartment we think he was also privileged to have a police escort to prevent interference by Janik.

Janik, at 548 (emphasis added).

In United States v. Diaz, 814 F.2d 454 (7th Cir.1987), an undercover agent had arranged for the purchase of drugs from a suspect in a hotel room. After telling the suspect that he would return later with the purchase money, the officer signalled other officers and they all immediately reentered the room. Holding this method constitutional, the Court of Appeals for the Seventh Circuit stated that “Diaz effectively consented to the second entry by virtue of his consent to [the officer’s] first entry. [The agent] was in the hotel room with Diaz’ consent, and the fact that [he] momentarily stepped out to obtain help from other officers in making the arrest did not vitiate this consent.” Diaz, 814 F.2d at 459. We recognize that Diaz is distinguishable, both because Diaz was expecting the eventual return of the officer, and because Diaz opened the door to the room to permit reentry. However, neither of these facts was relied upon. The court held that it would apply the:

doctrine of “consent once removed” only where the agent (or informant) entered at the express invitation of someone with authority to consent, at that point established the existence of probable cause to arrest or search, and immediately summoned help from other officers. We do not intend to suggest by our analysis that one consensual entry means that law enforcement agents may thereafter enter and exit a home at will. In this case, however, the second entry was clearly lawful. Therefore, Diaz’s arrest was valid, and there was no illegal search.

Diaz at 459 (emphasis added). We note that, in both Janik and Diaz, the courts reached their conclusions despite having held that no exigent circumstances were presented.

We find the analysis of the Court of Appeals for the Seventh Circuit persuasive. We hold that, while one consensual entry does not entitle a law enforcement official to return at any substantially later time, an officer’s momentary exit to secure back up does not invalidate an otherwise legal arrest.

Our disposition of this case makes it unnecessary to decide whether exigent circumstances alone justify the second entry. In any event, the trial court stated at the suppression hearing:

I perceive this [case] as not one that will call for the consideration of exigent circumstances____ I’m mindful of the concerns of the 14th Amendment and the other portions of the Constitution and the rights of the defendant, but in this instance I’m satisfied that the officer, herself, of course had the right to make the arrest had she chosen to herself. But the arrest having been made only seconds later by her brother officer or officers in this Court’s judgment does not alter the facts as viewed here.

N.T. December 6, 1989, at 40-41. Inasmuch as our holding makes this issue moot, and the suppression court never decided it, the issue is not before us, and we will not address it.

For the foregoing reasons we affirm the Judgment of Sentence by the trial court.

Judgment of Sentence Affirmed.

McEWEN, J., concurs in the result.


author: BECK, Judge: POPOVICH, Judge,

text:
    586 A.2d 409
    Victor OSTROV, Appellant, v. I.F.T., INC., Appellee.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed Jan. 31, 1991.

      Manuel A. Spigler, Philadelphia, for appellant.
    Charles A. Harad, Philadelphia, for appellee.
    Before WIEAND, BECK and POPOVICH, JJ.
   BECK, Judge:

This is a dispute between a taxicab driver, appellant Victor Ostrov, and the administrator of the motor vehicle self-insurance plan in which Ostrov participated, appellee I.F.T., Inc. The issue is whether the trial court erred in dismissing a portion of Ostrov’s complaint against I.F.T. on the ground that the court did not have subject matter jurisdiction to decide issues involving the terms of the self-insurance plan because exclusive jurisdiction over such issues was vested in the Public Utility Commission (the “Commission”). We find that the trial court erred in dismissing a portion of Ostrov’s complaint and we, therefore, reverse and remand.

The origins of this dispute lie in the motor vehicle insurance crisis experienced by motor carriers in the early 1980’s. At that time, motor carriers, including taxicab operators, were increasingly unable to secure affordable motor vehicle insurance coverage. The problem was particularly acute in the Philadelphia area. As a result, in mid-1986, a number of Philadelphia area taxicab operators filed an application with the P.U.C. for joint authority to participate in a self-insurance program which would provide first party benefits, liability coverage and uninsured and underinsured motorist benefits. In In Re Genco Services, Inc. t/a Cheldon Radio Cab, 62 Pa.P.U.C. 362 (1986), the Commission granted this application and approved the applicants’ proposed self-insurance plan.

In approving the self-insurance plan, the Commission acted under its authority to regulate insurance of motor carriers provided by section 512 of the Public Utility Code, which. provides, in part:

The Commission may, as to motor carriers, prescribe, by regulation or orders, such requirements as it may deem necessary for the protection of persons or property of their patrons and the public, including the filing of surety bonds, the carrying of insurance, or the qualifications and conditions under which such carriers may act as self-insurers with respect to such matters.

66 Pa.C.S.A. § 512 (1979); In Re Genco, supra, at 366.

One aspect of the plan as approved by the Commission was the designation of the program administrator, I.F.T., Inc., appellee herein. Under the plan, I.F.T.’s duties included general management of the self-insurance program, including loss settlement and claims payment. In addition, I.F.T. was charged with the responsibility of developing a driver registration and training program. The necessity for such a program was regarded by the Commission as being of paramount importance, as the Commission observed that:

... an integral part of improving the quality of taxicab service in Philadelphia, and to assuring a long term solution to the present insurance crisis, is internal regulation of the drivers actually operating the taxicabs on the street.....[this] proposal to self-regulate the drivers through its joint self-insurance program is a well developed and practical approach to this problem____
Furthermore, the Commission will lend support to IFT in its implementation of the proposed loss prevention program. If it is discovered that a participant has hired or leased a cab to a driver who is not recognized by the program as acceptable the Commission will take immediate action to rescind the party’s self-insurer status and suspend its operating rights.

Id. at 380.

In implementing this approval of I.F.T.’s driver certification and loss prevention program, the Commission ordered:

IT IS FURTHER ORDERED: That unqualified drivers, as determined by IFT or this Commission, shall be prohibited from driving, leasing or taking possession of any taxicab operated by a participant certificate holder. Upon discovery that an unqualified driver has been utilized, the Commission shall take immediate action to rescind the certificate holder’s approval to self insure and to suspend the certificate holder’s operating rights.

Id. at 382.

In accordance with this mandate from the Commission, I.F.T. developed a Driver Certification Program imposing certain requirements on drivers employed by operators who participated in the self-insurance program. The Liability Coverage Insurance Agreement issued by I.F.T. to participating cab operators provided that only drivers certified under the self-insurance plan’s Driver Certification Program would be covered and specifically prohibited covered drivers from failing to meet the standards of the Driver Certification Program.

In early 1987, appellant Ostrov became a participant in the self-insurance program. In accordance with the insurance plan’s requirement, Ostrov signed an agreement assenting to the terms and conditions of the Driver Certification Program. One of the terms of this agreement provided:

9. When medical, attention and/or work loss stems from an accident, the Plan’s Service provider can, at their sole discretion, require independent medical evaluation(s). I understand and agree that a refusal by me to permit such evaluation(s) is cause for cancellation of the drivers registration certificate issued under the Plan.

On May 10, 1989, Ostrov was involved in an accident-while driving his cab and allegedly sustained personal injuries. He gave timely notice of the accident to I.F.T. and sought payment of benefits under the self-insurance plan. Very shortly thereafter, I.F.T. requested that Ostrov submit to a medical examination. Ostrov refused despite a warning from I.F.T. that he could be decertified and coverage denied if he did not submit to the exam. At the end of June 1989, I.F.T. notified Ostrov that he had been decertified as an approved driver, that no insurance benefits would be paid by the self-insurance plan, that he was prohibited from operating a cab under that plan and that his company would be ejected from the plan entirely and fined if he continued to operate a cab despite his decertification.

On July 17, 1989, Ostrov filed a petition for preliminary injunction and a two count complaint against I.F.T. The first count of the complaint was in equity. In it Ostrov alleged that the medical examination provision of the Driver Certification Program was void as contrary to law because it violated the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701—1798.4 (1984). Count I sought an award of compensatory and punitive damages and attorney’s fees and a permanent injunction providing:

1) that the provisions of the I.F.T., Inc. administered Plan providing for independent medical evaluations of drivers at the sole discretion of the defendant I.F.T., Inc. are void as contrary to law;
2) that defendant I.F.T., Inc. is enjoined from enforcing or threatening to enforce the aforesaid provisions;
3) that defendant I.F.T., Inc. is prohibited from seeking medical examinations of claimants, except in accordance with the Pennsylvania Financial Responsibility Act;
4) that defendant I.F.T., Inc. is enjoined from threats of imposition of fines and “decertification” of the plaintiff.

In the second count, Ostrov sued I.F.T. in assumpsit. Ostrov alleged that he had incurred various medical bills as a result of his injuries and that I.F.T. had wrongfully refused to pay those sums to him as first party benefits. Thus, Ostrov sought recovery of those amounts, plus interest and attorney’s fees, under the Financial Responsibility Law.

Ostrov’s petition for preliminary injunction, filed ancillary to the complaint in equity contained in count I, prayed for a preliminary injunction immediately enjoining I.F.T. from acting in the manner complained of in count I.

Pursuant to a stipulation between the parties which was approved by the court on July 27, 1989, the matter was stayed until August 7th pending disposition of the preliminary objections that I.F.T. intended to file. The stipulation also provided that Ostrov was to be recertified until at least that date. On July 28th, I.F.T. filed preliminary objections arguing, inter alia, that Ostrov had failed to exhaust his administrative remedies by failing to petition the Commission for relief and that the trial court therefore lacked jurisdiction to decide the case. By order dated August 15, 1989, the trial court granted this preliminary objection as to Count I of the complaint and dismissed that count. The preliminary objections to Count II were denied.

The trial court’s dismissal of count I was based on the court’s perception that it did not have subject matter jurisdiction to decide the issues raised in count I because the Commission had exclusive jurisdiction over those issues. The court noted that the Commission had broad discretion over matters involving insurance of motor carriers and the exclusive authority to establish rules and regulations governing their self-insurance. The court further noted that the Commission had approved this self-insurance program and had approved the decertification of unqualified drivers. Thus, the trial court determined that Ostrov was required to exhaust his administrative remedies before the Commission and could not obtain relief from his decertification in an action in the court of common pleas.

Contrary to the analysis pursued by the trial court, we find that the issue in this case actually involves application of the doctrine of primary jurisdiction. Although the trial court found that it lacked subject matter jurisdiction to decide the issues raised by count I because jurisdiction over them has been allocated by the legislature solely to the Commission, we find that this case does not involve any question of subject matter jurisdiction. Rather, this case is appropriately to be decided under the doctrine of primary jurisdiction, which does not operate to oust the subject matter jurisdiction of the court.

The Supreme Court described this doctrine in Jackson v. Centennial School District, 509 Pa. 101, 107, 501 A.2d 218, 221 (1985), as follows:

In general, the doctrine of primary jurisdiction holds that where an agency has been established to handle a particular class of claims, the court should refrain from exercising its jurisdiction until the agency has made a determination. Hence, although the court may have subject matter jurisdiction, the court defers its jurisdiction until an agency ruling has been made.

Thus, the doctrine of primary jurisdiction applies where the administrative agency cannot provide a means of complete redress to the complaining party and yet the dispute involves issues that are clearly better resolved in the first instance by the administrative agency charged with regulating the subject matter of the dispute. As the Supreme Court explained in its definitive opinion on primary jurisdiction, Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980):

... the reality [is] that frequently both the courts and administrative agencies must each play roles in the adjudication of certain matters,____
To accomodate the role of the court with that of the agency, the doctrine of primary jurisdiction (or primary exclusive jurisdiction) has been developed. Essentially, the doctrine creates a workable relationship between the courts and administrative agencies wherein, in appropriate circumstances, the courts can have the benefit of the agency’s views on issues within the agency’s competence.
Therefore, where the subject matter is within an agency’s jurisdiction and where it is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency. Also weighing in the consideration should be the need for uniformity and consistency in agency policy and the legislative intent. Where, on the other hand, the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility.

Id., 491 Pa. at 131, 420 A.2d at 375-77.

Thus, Elkin established that in a case where the issues raised merit referral to an agency, but the agency cannot provide complete relief, the proper procedure is bifurcation of the action. The trial court must stay the action pending before it and refer to the administrative agency those issues over which the agency has primary jurisdiction. Those issues must then be decided by the agency. The action then proceeds in the trial court where remaining issues within the purview of the court are decided and appropriate relief is granted. Id., 491 Pa. at 131-35, 420 A.2d at 376-77.

Therefore, the inquiry in this case is not whether the trial court had subject matter jurisdiction to entertain this dispute. Clearly, it did. Count I was a complaint in equity seeking an injunction and corollary relief in the form of damages over which a court of common pleas has jurisdiction. Count I of Ostrov’s complaint should not have been dismissed for lack of subject matter jurisdiction.

It is equally clear that count I of the complaint should not have been dismissed under the exhaustion doctrine, since that doctrine does not apply where the administrative remedy available is incomplete. See note 3, supra. Here, Ostrov sought both injunctive relief and compensatory and punitive damages in count I. Since the Commission has no power to award damages to a private litigant in the position of Ostrov, it could not afford Ostrov complete relief and he had no duty to exhaust. See Feingold v. Bell of Pennsyl vania, 477 Pa. 1, 383 A.2d 791, 793 (1977) (Commission has no power to award damages for breach of contract with public utility); DiSanto v. Dauphin Consolidated Water Supply Co., 291 Pa.Super. 440, 436 A.2d 197 (1981) (Commission has no power to award damages in tort action against public utility); West Penn Power Co. v. Pennsylvania Public Utility Commission, 104 Pa.Commw. 21, 521 A.2d 75, 79 (1987) (Commission is without power to grant a remedy to injured litigants; it may use its remedial powers only to govern public utility policy).

Given this conclusion, what remains for decision is whether the trial court should have found that primary jurisdiction over the issue raised concerning the propriety of Ostrov’s decertification was in the Commission and that the action must be stayed while the Commission decides those issues. This question is to be resolved by focussing on the nature of the issue raised. As the Elkin court stated, if the issue is within the Commission’s jurisdiction and is a complex matter requiring special competence, it should be referred to the agency. However, as the Elkin court also cautioned, a court should not be too hasty in referring a matter to an agency when the court is equally capable of resolving it. Elkin, 491 Pa. at 134, 420 A.2d at 377.

In applying these general principles to the specific question of which matters involving public utilities should be referred to the Commission, our courts have opined that where resolution of a party’s claim “... depend[s] upon no rule or regulation predicated on the peculiar expertise of the PUC, no agency policy, no question of service or facilities owed to the general public, and no particular standard of safety or convenience articulated by the PUC”, then the court should not refer the matter to the Commission. DeFrancesco v. Western Pennsylvania Water Co., 499 Pa. 374, 378, 453 A.2d 595, 597 (1982). Thus, matters involving not what service the utility owed to the general public, but rather whether the service provided to a particular litigant was negligently provided are for the courts to resolve. Id. On the other hand, matters involving the general reasonableness or adequacy of a utility’s service to the public are within the primary jurisdiction of the Commission. Id.; see also Morrow v. Bell Telephone Co. of Pa., 330 Pa.Super. 276, 479 A.2d 548 (1984).

Although at first glance it would appear that the proper procedure to have been followed in this case would have been bifurcation and referral to the Commission, on reflection we find that referral to the Commission is unwarranted. As we have indicated above, it is clear that the Commission has broad discretion in regulating insurance of motor carriers and is charged with regulating the conditions and qualifications under which motor carriers may self-insure. 66 Pa.C.S.A. § 512. In accordance with this authority, the Commission has promulgated regulations governing self-insurance. It would seem only logical and consistent with this regulatory scheme to refer to the Commission issues challenging the specific grounds on which a driver can be decertified.

The flaw in this analysis, however, is that it does not take sufficient account of the specific and limited challenge Ostrov has raised regarding his decertification. Ostrov’s sole challenge to his decertification is that the medical examination requirement violates the Motor Vehicle Financial Responsibility Law (the “MVFRL”). He argues that Section 1796 of the MVFRL permits a medical examination of a claimant only by court order on good cause shown and that the Driver Certification Program is void insofar as it permits I.F.T. to demand medical examinations in its sole discretion. See 75 Pa.C.S.A. § 1796 (1984). As Ostrov’s appellate brief states, “[t]he core issues presented to the Court of Common Pleas were whether the self-insurance plan is governed by the Financial Responsibility Act and whether provisions of the insurance contract contrary to the Financial Responsibility Act are enforceable.” Brief for Appellant at 11. Ostrov raises no other challenge to this provision. He does not contend that it violates the Commission’s rules or regulations governing self-insurance of motor carriers, nor does he contend that it violates any other Commission rule, regulation or order setting forth standards for self-insurance.

We do not view this specific challenge as raising an issue that is within the Commission’s primary jurisdiction. The fact that the Public Utility Code grants the Commission the power to prescribe the conditions and qualifications under which motor carriers may act as self-insurers does not grant the Commission the authority to decide whether the legislature intended certain requirements of the MVFRL, such as those regarding medical examinations, to apply equally to self-insurers as a matter of law. Rather, this is a pure legal question and it is peculiarly within the jurisdiction and expertise of a court to resolve it. Resolution of this question primarily entails statutory construction of the MVFRL. It requires close analysis of Section 1787 of the MVFRL, which provides certain statutory criteria for eligibility .as a motor vehicle self-insurer and which charges the Department of Transportation, together with the Insurance Department, with the responsibility for promulgating regulations implementing section 1787. 75 Pa.C.S.A. § 1787. It also requires careful construction of the precise language of Section 1796 regarding medical examinations of claimants for benefits. Such construction and analysis is within the purview of the courts and certainly does not fall within the areas in which the Commission has any particular expertise. We point out that this substantive question is not ripe for decision on appeal because it has not been decided by the trial court or briefed for appellate review.

Issues concerning the applicability of insurance statutes to self-insurance plans such as that involved in this case have long been resolved by the courts. For example, in Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), the Supreme Court determined that the provisions of the Uninsured Motorist Act did apply to self-insurers and that under it, self-insurers were required to provide uninsured motorist coverage. There was no question that the court had jurisdiction to decide this question of law. Moreover, in so holding, the Court specifically overruled Johnson v. Yellow Cab Co., 456 Pa. 256, 317 A.2d 245 (1974). In Johnson, the court had held that the Act did not apply to motor carrier self-insurers and suggested that it was for the Commission to decide whether such a requirement should be imposed on self-insurers within the jurisdiction of the Commission.

Thus, we reverse the trial court’s dismissal of count I and remand this matter for disposition by the trial court in accordance with this opinion.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the opinion of the majority as I am convinced that the subject matter herein is properly under the jurisdiction of the Public Utilities Commission and the Commonwealth Court. Accordingly, I would quash this appeal.

      . Although the record is not entirely clear in this regard, it appears that Ostrov was the owner of a taxicab company named VW Cab Co. Ostrov also drove a cab for his company. Thus, VW Cab Co. appears to be the motor carrier certificate holder that became a participant in the self-insurance program and Ostrov was a certified driver for that company. He was, therefore, insured under the program.

      . Ostrov appeals the dismissal of count I. Since count I sought a permanent injunction, the dismissal of that count constituted a denial of an injunction which is immediately appealable under Pa.R.A.P. 311(a)(4).

      . In contrast, the doctrine of exhaustion of administrative remedies requires that where a party can obtain complete relief before an administrative agency, he must exhaust all of his remedies before that agency before seeking judicial relief. See Frye Construction, Inc. v. City of Monongahela, 526 Pa. 170, ---, 584 A.2d 946, 948-949 (Pa.1991); Jackson v. Centennial School District, 509 Pa. 101, 501 A.2d 218 (1985); Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). Even in a situation where exhaustion is required, however, the trial court is not deprived of jurisdiction. As the Supreme Court expressly stated in Jackson, supra, the requirement of exhaustion is no more than a judge-made rule which imposes a prerequisite on the court’s exercise of its subject matter jurisdiction. Jackson, 509 Pa. at 107, 501 A.2d at 221 n. 5.

      . The Commission itself has recognized this joint authority of the Department of Transportation regarding self-insurance. Section 32.15 of the Commission’s self-insurance regulations specifically provides that Commission approval of self-insurance by a motor carrier is dependent upon issuance of a self-insurance certificate to the carrier by the Department of Transportation. See 52 Pa.Code § 32.15 (1987).