author: TAMILIA, Judge:

text:
    571 A.2d 453
    COMMONWEALTH of Pennsylvania v. Ronald MORRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed March 12, 1990.

      Carl J. Poveromo, Asst. Public Defender, Scranton, for appellant.
    Andrew Jarbola, Dist. Atty., Scranton, for Com., appellee.
    Before McEWEN, TAMILIA and FORD, ELLIOTT, JJ.
   TAMILIA, Judge:

Appellant Ronald Morrison brings this appeal from judgment of sentence entered July 26,1989. Pursuant to a plea agreement, appellant pled guilty to driving under the influence (DUI), and was sentenced to a term of nine months to two years in a state correctional institution, fined $300 and ordered to complete an alcohol safety program. On appeal, appellant argues the court imposed an excessive sentence outside the sentencing guidelines without indicating the permissible range of sentences under the guidelines and the reasons for deviation from such guidelines.

Initially we note the inappropriateness of appellant’s argument because the sentencing guidelines are not applicable to cases of driving under the influence. Rather, according to section 303.5(a) of the Sentencing Guidelines, “[sentences for driving under the influence of alcohol or controlled substances are determined by application of 75 Pa. C.S. § 3731 (relating to mandatory imprisonment for driving under the influence of alcohol or controlled substance).” 204 Pa.Code § 303.5(a), reprinted following 42 Pa.C.S. § 9721.

We are, therefore, unable to determine how appellant’s counsel and the trial court derived the guidelines cited in the brief and on the sentencing guideline sentence form— that is a standard range of two days to six months, an aggravated range of six months and a mitigated range of two days. See, appellant’s brief at pp. 8-9 and the Guideline Sentence Form contained in the record. Neither our research nor an inquiry to the Commonwealth’s Commission on Sentencing revealed any evidence these purported guidelines were ever in effect for a drunk driving case. In fact, the instructions for completing the Guideline Sentencing form direct that as to section IV of the form “[wjhen DUI is the only current conviction enter only the name of the offense and the sentence that was imposed. For all current crimes other than DUI____” The Sentencing Commission in designing the form, therefore, did not contemplate a guidelines sentencing range for DUI convictions.

Driving under the influence of alcohol or controlled substance is subject to statute as follows:

75 Pa.C.S.A. § 3731, Driving under influence of alcohol or controlled substance
(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:
(i) not less than 48 consecutive hours.
The only sentencing parameters available for use in sentencing a defendant convicted of a second degree misdemeanor are as follows:
18 Pa.C.S.A.
§ 1101. Fines
A person who has been convicted of an offense may be sentenced to pay a fine not exceeding:
(4) $5,000, when the conviction is of a misdemeanor of the second degree.
§ 1104. Sentence of imprisonment for misdemeanors
A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than:
(2) Two years in the case of a misdemeanor of the second degree.

In light of the above, therefore, further consideration of the sentence must be conducted absent any implication of the sentencing guidelines relied upon by appellant, and in accordance with the statutes establishing the crime, its penalties and the Sentencing Code. Before proceeding to that analysis, however, we are required to determine if there appears to be a substantial question as to the appropriateness of the sentence, permitting us to go forward with this review.

“[T]he appearance of a substantial question determines whether this court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of the court determines whether the court will grant review.” Commonwealth v. Hall, 382 Pa.Super. 6, 14-19, 554 A.2d 919, 923-24 (1989); 42 Pa.C.S. § 9781(b), appellate review of sentence. Although appellant has provided a statement of reasons relied upon for appeal, we must also consider the Supreme Court’s observation in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that it is necessary to “make a careful distinction between ‘questions relating to the discretionary aspects of the sentence’ and ‘the issue whether the appellate court should exercise its discretion to reach such question.’ Pa.R.A.P. 902.” Id., 513 Pa. at 512, 522 A.2d at 19. The Court in Tuladziecki went on to note:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercises its discretion.

Id., 513 Pa. at 514, 522 A.2d at 20. As the sentence here is far in excess of the applicable two-day minimum sentence and because the trial court ordered the sentence to be served in a state rather than a county institution, we believe a substantial question as to the appropriateness of the sentence has been raised for our review and we will accept the appeal.

We believe the policy considerations of Tuladziecki can be applied to sentences for drunk driving offenses. In reviewing such a sentence, “we must look at the nature and circumstances of the offense, the history and characteristics of the defendant, the opportunity of the sentencing court to observe the defendant, the presentence investigation report, the findings on which the sentence was based, and the Guidelines.” Commonwealth v. Septak, 359 Pa.Super. 375, 381, 518 A.2d 1284, 1287 (1986) (footnote omitted). In this instance, rather than using the Guidelines as a reference point for determining if the trial court abused its discretion in sentencing appellant, we must look to the mandatory statutory minimum sentence of two days and the statutory maximum sentence of two years, both of which appellant was well aware.

At the guilty plea hearing, the court made the following observations before accepting the plea.

Q Well, Mr. Morrison, driving under the influence carries a maximum penalty of two years in jail and/or a $5000. fine. Now, I have trouble with this. You tell me you were drinking yesterday, although it’s not related to the crime here, but that means to me one thing, you’re going to be back here no matter what I do, you’re going to be back here again, so I don’t see that you straightened out your ways, or the fact that you’re facing a court term, or a court penalty, that that has any influence on you, but I want you to understand it’s a maximum of two years in jail and/or a $5000. fine. I’m going to order a presentence investigation, and I will review that presentence investigation. I’m not bound by anything else that anyone else has told you. If someone told you that maybe you’re going to get off with probation, or something, I’m not necessarily going to agree with that. I don’t know what it is. I don’t know of anything else, and I’m going to look at that presentence report, and I’m going to sentence you the way I think you should be sentenced. Right now, there are other charges from another time, you come in here and you’re on a charge of drunk driving, and you’re still drinking.
I’ll take the plea of guilty, if you want to plead guilty, I’ll take the plea of guilty, but let me tell you I’m going to look at this very closely, and your maximum in this case is a possibility of two years in jail, and/or a $5000. fine, do you understand that?
A Yes.
Q Now, knowing that, do you still wish to plead guilty?
A Yes.
BY THE COURT: Very well, I’ll accept the plea, and order a presentence investigation.

T.T., 4/10/89, pp. 8-9.

From the above, we believe it is apparent the court was at least contemplating a sentence beyond the mandatory two-day minimum and one in keeping with appellant’s prior record. The court recognized appellant’s drinking problem and not once, but three times, warned him of the possible fine and sentence and told him that following review of the presentence investigation, he would be sentenced the way in which the court believed he should be sentenced regardless of whatever other persons told him. At the time of sentencing, the court made the following additional comments as to his reasons for sentencing appellant as he did:

Very problematic file, and I don’t think your attitude of denying your drinking problem has been helping you. In fact you seem to get into more problems every time something happens. In addition I’m concerned with some of the things that occurred up in Wyoming County. Now you attribute those incidents to drinking. Well, if those incidents are attributed to drinking, you better stop, and you’re not doing it on your own. And if those incidents aren’t attributable to drinking, then you’ve got some other problems that you better own up to.
So I don’t like your record and I realize there’s a minimum of two days sentence that I can impose in this but I think for your safety, and Mr. Rothstein called me, saw me regarding this matter and says you’re a valued employee, always show up for work, you do your job and they’d like to have you. In fact everybody that you worked for says that, but I just don’t like what I see with this drinking problem and the things it leads you into. And if you’re not going to do it on your own we’re going to take you out of circulation so you can’t drink.

S.T., 6/30/89, pp. 3-4. The sentencing court found appellant had an alcohol problem with which he had not been able to deal effectively, and which the court found posed a serious risk, if left untreated. Drinking appeared to relate to other problems delineated in the presentence report which raised deep concerns with the trial judge. We, therefore, do not believe there was an abuse of the court’s discretion in sentencing appellant to a minimum of nine months imprisonment.

Appellant makes a related argument the court failed to inform him of the permissible range of sentences under the guidelines, as required by Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). As evidenced by the sentencing transcript cited above, however, appellant was informed by the court of the two-day mandatory minimum sentence for his DUI conviction and the statutory maximum sentence of two years, and as there are no applicable guidelines of which appellant could have been informed, there is no merit to appellant’s argument.

As to requiring the sentence to be served in a state as opposed to a county institution, again, this is purely within the discretion of the trial judge limited only by statutes or Department of Correction regulations as to where a sentence, of particular duration or following conviction of a particular crime, may be served. See Commonwealth v. Kriston, 390 Pa.Super. 543, 568 A.2d 1306 (1990).

The following exchange took place at the conclusion of the sentencing proceeding:

MR. PETORAK: Your Honor, can we ask for county time on this. I believe you said nine months to two years in a state institution.
THE JUDGE: That’s what — yes, that’s what I said.
MR. PETORAK: Could have we have it—
THE JUDGE: I don’t think he’s going to get the help he needs. This man needs help and I think he should be in a state institution. I think he should be in a state institution. It’s not going to happen here in Lackawanna County.

S.T. at 6. The trial court determined appellant needed treatment which was only available in the state institution and, therefore, directed the sentence be served where the treatment was available. In view of the general overload of both local and state institutions, it is not possible for this Court to determine that appellant would be better or worse served in one rather than the other.

While we might differ with the trial court as to the severity of the sentence for a first offender under the DUI statutes and the direction that the time be served at a state rather than a county institution, we are powerless to alter the sentence. Most first-time sentences for DUI are considerably less than imposed here and rarely, if ever, have we seen such a sentence mandated to be served in a state institution. The record, however, clearly establishes that the trial court at the guilty plea hearing informed the appellant how seriously he viewed this matter and that guided by the presentence investigation, a sentence up to the statutory maximum would be a distinct if not likely possibility. Pursuant to Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), the trial court acted within his discretion in imposing the sentence, which may not be disturbed on appeal. We, therefore, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1), (3), (4).

      . Pursuant to the plea agreement, the summary offense of Driving While Operating Privilege Suspended, 75 Pa.C.S.A. § 1543, was nolle prossed at the time of sentencing.

      . In an attempt to determine exactly from where appellant and the trial court derived those "guidelines," we reviewed the first and second editions of the Sentencing Guidelines Implementation Manual in addition to the third edition which is currently in effect. At the time of the original sentencing guidelines, effective July 22, 1982, DUI was graded as a misdemeanor III and there were applicable guidelines for DUI cases. For first-time offenders, both the mitigated and standard ranges were nonconfinement to six months confinement and the aggravated range was the statutory limit of six months. (Those guidelines were superseded by the mandatory minimum sentences of Act 289 of 1982, effective January 15, 1983.) It is possible the guidelines suggested by appellant are an adaptation of the original guidelines put out by the Sentencing Commission (when DUI was a third as opposed to a second degree misdemeanor) with the addition of the mandatory sentence provisions. In any event, they are irrelevant to our disposition of this case.


source: Caselaw Access Project

author: BECK, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    571 A.2d 457
    Charles P. ECTOR, Appellee, v. MOTORISTS INSURANCE COMPANIES and the Travelers Companies. Appeal of MOTORISTS INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1989.
    Filed March 6, 1990.
    Petition for Allowance of Appeal Denied July 31, 1990.

      David B. Torrey, Pittsburgh, for appellant.
    Gary M. Lang, Pittsburgh, for Ector, appellee.
    William J. Begley, Pittsburgh, for Travelers Companies, appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The issue is whether an uninsured pedestrian injured by an insured stolen vehicle is entitled to seek recovery of non-economic damages from the insurer of the motor vehicle or the Assigned Claims Plan. We hold that the insurer of the motor vehicle, appellant Motorists Insurance Companies (“Motorists”), is the source of recovery for the uninsured pedestrian seeking non-economic damages. In so holding, we affirm the trial court’s denial of appellant-Motorists’ summary judgment motion, its grant of appellee-Ector’s summary judgment motion and its grant of appelleeThe Travelers’ Insurance Company (“Travelers”) summary judgment motion.

The facts are not in dispute. Albert Mitchell owned an automobile insured by Motorists. James Henry King, who was not covered by any automobile insurance, stole the Mitchell automobile. While operating the vehicle, King drove onto the sidewalk and ran into Charles P. Ector. This collision resulted in Ector’s breaking his leg. At the time of the accident, neither Ector, nor anyone at his residence was insured by a valid automobile insurance policy.

Thereafter, Ector filed suit against King. Ector sought only non-economic damages because the Pennsylvania Department of Public Welfare had paid Ector’s medical bills. After Ector learned that King was not covered under an automobile insurance policy, Ector attempted to collect the damages he sought from Motorists under the Motor Vehicle Financial Responsibility Law (“Financial Responsibility Law”), 75 Pa.C.S. § 1701 et seq. Motorists denied liability for the non-economic damages Ector sought. Ector then sought coverage for his non-economic losses from the Assigned Claims Plan. Travelers also denied liability for the non-economic damages. Ector then brought a declaratory judgment action against Motorists and Travelers. The appeal is from that action.

Appellee Travelers first argues that the appeal should be quashed. Travelers argues, inter alia, that appellant is not an “aggrieved” party within the meaning of Pa.R.App.P. 501. Appellee-Travelers argues that Motorists is not adversely affected by the dismissal of Travelers from this action. We find no merit in this contention.

The Pennsylvania Supreme Court recently addressed this issue in Mitchell v. Travelers Ins. Co., 522 Pa. 545, 564 A.2d 1232 (1989). In Mitchell, the court considered a case in which one of two insurance carriers, Public Service Mutual Insurance (“PSMI”) and The Travelers Insurance Company (“Travelers”), was required to pay plaintiff basic loss benefits. Id., 522 Pa. at 546, 564 A.2d at 1233. The trial court granted summary judgment in favor of PSMI. The Pennsylvania Supreme Court explained that in cases in which a plaintiff seeks recovery against multiple defendants, “dismissal of any one defendant from the action” necessarily “affect[s] the interests of the other defendants.” Id., 522 Pa. at 547, 564 A.2d at 1234. The court explained that while a plaintiffs interest is to have liability assessed against any defendant, the defendants have an independent interest to ensure “that liability is imposed on the responsible party.” Id., 522 Pa. at 546, 564 A.2d at 1233. The court concluded that based upon this independent interest, Travelers possessed standing to appeal the trial court’s grant of PSMI’s motion for summary judgment. Id., 522 Pa. at 548, 564 A.2d at 1235.

The reasoning in Mitchell is equally applicable to the instant case. For the reasons relied upon by the court in Mitchell, we conclude that Motorists has standing to appeal the trial court’s grant of Travelers’ summary judgment motion.

Travelers also asserts that because in its order the trial court compelled appellant and appellee-Ector to proceed to arbitration, this is not a final order, but rather is interlocutory, and therefore, not appealable. We find no merit in this contention.

While appellee-Travelers is correct in its assertion that orders compelling arbitration are interlocutory and, therefore, not appealable as a matter of right, Gardner v. Prudential Ins. Co., 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984), citing 42 Pa.C.S. § 7320(a)(1) (Purdon 1982), appellant in the instant case is not appealing from an order compelling arbitration. Rather, appellant is appealing from the trial court’s denial of its summary judgment motion and grant of Ector’s and Travelers’ summary judgment motions.

The Pennsylvania Commonwealth Court has noted that “[i]n determining appealability of orders, Pennsylvania courts adhere to the ’final judgment rule,’ which holds that an appeal will lie only from a final order unless otherwise permitted by statute or rule.” Bollinger by Carraghan v. Obrecht, 122 Pa.Commw. 562, 564-65, 552 A.2d 359, 361 (1989).

In deciding that the order is appealable we conclude that Mitchell, supra, a case procedurally analogous to the instant appeal, is dispositive. In that case, like the instant one, one defendant’s motion for summary judgment was granted, while another defendant’s summary judgment motion was denied. The plaintiff in Mitchell was struck by a motorcycle. He brought suit against the insurer of the motorcycle, PSMI, and the designated carrier under the Assigned Claims Plan, Travelers. PSMI and Travelers filed cross-motions for summary judgment, seeking a determination of which of the two was liable for plaintiff’s injuries. PSMI’s motion was granted, while Travelers’ motion was denied. Only Travelers appealed this order. The Mitchell court concluded that the trial court’s order granting PSMI’s motion and denying Travelers’ motion was an appealable order. Mitchell, 522 Pa. at 548, 564 A.2d at 1235. The Mitchell court relied upon Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 518 A.2d 1213 (1986), in which this court explained that the granting of summary judgment in favor of one defendant “ ‘required no further action by the court’ ” as to that defendant and was, therefore, appealable. Mitchell, 522 Pa. at 548, 564 A.2d at 1235, quoting Shaffer, 359 Pa.Super. at 247, 518 A.2d at 1217.

In the instant appeal, too, the trial court’s denial of Motorists’ motion for summary judgment and grant of Travelers’ motion for summary judgment required no further action by the trial court. This was a final order and, therefore, appealable to this court.

Having decided that Motorists possessed standing to challenge the trial court’s order and that the trial court’s order was final and appealable, we now consider whether, under the Financial Responsibility Law, Ector has a right to recover uninsured motorist benefits from either Motorists or Travelers.

Appellee-Travelers contends that we are bound by our 1984 decision in Prudential Ins. Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984), in which under the (now repealed) No-Fault Motor Vehicle Insurance Act, 40 Pa.S. §§ 1009.101 et seq. appellant-Motorists would clearly be liable for the uninsured motorist benefits sought by appellee-Ector. Conversely, appellant asserts that because Falligan was based upon the No-Fault Act’s policy of “maximum feasible restoration,” we are no longer bound by this decision.

After a careful analysis of the pertinent cases and the arguments asserted by appellees and appellant, we conclude that despite the repeal of the No-Fault Act, the reasoning employed by the Falligan court is correct and controls the disposition of the case at bar. We conclude that the trial court was correct in holding Motorists liable to Ector for uninsured motorist benefits.

A motion for summary judgment shall be granted “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.” Pa.R.C.P. 1035(b).

An appellate court reviewing the grant of a motion for summary judgment is required to:

view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Hackenberg v. SEPTA, 384 Pa.Super. 335, 336, 558 A.2d 860, 861 (1989), quoting Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986), alloc. den., 513 Pa. 633, 520 A.2d 1384 (1987) (citations omitted). Based upon this standard, we conclude that the trial judge was correct in denying appellant’s motion for summary judgment and granting appellees’ motions for summary judgment.

Appellees-Ector and Travelers suggest that in evaluating appellee-Ector’s claim, we are bound by Tubner v. State Farm Mut. Auto. Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981) and Prudential Ins. Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984). We agree.

In Tubner, Jerry Amey (“decedent”) died of injuries received while he was a passenger in an uninsured motor vehicle. Tubner, 496 Pa. at 216, 436 A.2d at 622. Decedent did not own a motor vehicle and, therefore, had no automobile insurance. As a result, under the Assigned Claims Plan, State Farm Mutual Insurance Co. (“State Farm”) was named as the participating insurer and paid basic loss benefits to decedent’s administratrix. Id., 496 Pa. at 216, 436 A.2d at 622. However, the administratrix of decedent’s estate also contended that she was entitled to uninsured motorist benefits from State Farm. Id., 496 Pa. at 216, 436 A.2d at 622.

The Pennsylvania Supreme Court held that:

Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straight-forward reading of the statute and the regulation lawfully promulgated thereunder.
Any other interpretation of appellee’s statutory rights under the assigned claims plan would frustrate the Legislature’s intention, expressed in Section 102 of this remedial legislation, to provide maximum feasible restoration to all accident victims in a comprehensive, fair, and uniform manner.

Id., 496 Pa. at 217, 436 A.2d at 623 (footnotes omitted). The court opined that to hold otherwise “would perpetuate many of the harsh results of the outdated fault system by denying general damages to innocent victims of irresponsible drivers.” Id., 496 Pa. at 217, 436 A.2d at 623 (footnote omitted).

Three years later in Falligan, Ishmael Falligan, a pedestrian who had no insurance coverage of his own, was injured by an automobile which was operated by the owner’s son without the owners permission. The automobile was insured by Prudential Property & Casualty Insurance Company (“Prudential”). Falligan, 335 Pa.Super. at 196, 484 A.2d at 89. Prudential paid Falligan basic loss benefits. Falligan also sought uninsured motorist benefits from Prudential. Prudential denied coverage for the uninsured motorist benefits sought, arguing that at the time of the accident, because the vehicle was operated without the owner’s permission, the insurance policy covering the car was not applicable. Id., 335 Pa.Superior Ct. at 197, 484 A.2d at 90.

The court consolidated Donovan v. Keystone Ins. Co. with Falligan. In Donovan, Paullette Donovan, a pedestrian, was struck by an automobile insured by Keystone Insurance Company (“Keystone”) and operated by a person who had stolen the vehicle. Donovan was not covered by any insurance policy and sought recovery of basic loss benefits and uninsured motorist benefits from Keystone. Id., 335 Pa.Superior Ct. at 197, 484 A.2d at 90. Keystone paid Donovan the basic loss benefits she sought, but refused to pay her uninsured motorist benefits because the operator of the vehicle at the time of the accident did not have the vehicle owner’s permission to drive the vehicle. Id., 335 Pa.Superior Ct. at 197, 484 A.2d at 90.

The Superior Court of Pennsylvania, relying on Tubner, concluded that no distinction could be made between an uninsured victim seeking uninsured motorist benefits under the Assigned Claims Plan, as was the case in Tubner, and an uninsured victim seeking the same benefits from the insurer of the vehicle which injured the victim. Id., 335 Pa.Superior Ct. at 199, 484 A.2d at 92. The court concluded that Prudential and Keystone were required to provide uninsured motorist benefits to the respective plaintiffs. Id., 335 Pa.Superior Ct. at 196, 484 A.2d at 89. To hold otherwise, the court explained, would frustrate the purpose of the No-Fault Act, which is “ ‘to provide maximum feasible restoration to all accident victims in a comprehensive, fair and uniform manner.’ ” Id., 335 Pa.Superior Ct. at 199, 484 A.2d at 92, quoting Tubner, 496 Pa. at 220, 436 A.2d at 623. Appellant contends that this quoted language differentiates Falligan from the case sub judice. We disagree.

While appellant is correct in pointing out that the Motor Vehicle Financial Responsibility Law does not contain any policy language analogous to the “maximum feasible restoration” language contained in the No-Fault Act, 40 Pa.S.A. § 1009.102(a)(3), this court has noted that because “[a] financial responsibility act is remedial in nature” it is to be “liberally construed so as to attain the legislative intent to protect the general public from loss caused by ... negligence." Donegal Mut. Ins. Co. v. Long, 387 Pa.Super. 574, 580, 564 A.2d 937, 943 (1989), quoting Couch on Insurance 2d (Rev. ed.) § 45:733 (emphasis added) (citations omitted). While this language is not contained in the Financial Responsibility Law, it has been cited with approval by this court. And although this language does not mirror the language contained in the No-Fault Act and relied upon by the Falligan court, it is sufficiently analogous to require this court to follow our decision in Falligan. We conclude, therefore, that based upon our holding in Falligan,. appellant is liable to appellee-Ector for the uninsured motorist benefits provided for in Motorists’ policy.

Appellant contends, however, that section 1731 of the Uninsured and Underinsured Motorist Coverage subchapter of the Financial Responsibility Law precludes this result. This section provides that “[ujninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles.” 75 Pa.Cons. StatAnn. § 1731 (Purdon Supp.1989). Appellant contends that because the motor vehicle which injured appellee-Ector was not “uninsured”, as the statute requires, appellee-Ector is not entitled to uninsured motorist benefits.

While the language cited by appellant, in a vacuum, might arguably control the outcome of the case sub judice, the General Assembly, when it enacted the Financial Responsibility Law, could not have contemplated the instant fact situation nor intended the result suggested by appellant. This is so because, as appellee-Ector correctly points out in his brief, appellant’s suggested interpretation of the Financial Responsibility Law would deny appellee-Ector the uninsured motorist damages he seeks because uninsured motorist benefits are not available to a victim injured by an insured vehicle. On the other hand, if appellee-Ector had been injured by an uninsured vehicle, he would have been permitted recovery of all his damages including his non-economic losses from the Assigned Claims Plan. Appellee-Ector’s brief at 9. The General Assembly could not have intended such an absurd and unreasonable result.

We note that “[i]n ascertaining the intention of the General Assembly in the enactment of a statute” we may presume “[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.Cons.Stat.Ann. § 1922 (Purdon Supp.1989). McCoy v. Roth, 128 Pa.Commw. 374, 379, 563 A.2d 606, 608 (1989). See Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 500, 464 A.2d 431, 434 (1983). We also emphasize that in ascertaining the legislative intent, we must utilize a common sense approach. Commonwealth v. Smith, 386 Pa.Super. 626, 630, 563 A.2d 905, 909 (1989). Employing a common sense approach, we conclude that the interpretation advanced by appellant is not persuasive.

We conclude, therefore, that Falligan controls the disposition of this case. In so concluding, we affirm the trial court.

Order affirmed.

DEL SOLE, J., files concurring opinion.

DEL SOLE, Judge,

concurring.

I join the Majority in its determination that this appeal should not be quashed. Further, I join the Majority in its analysis that the Appellant, Motorists Insurance Companies, is the insurer responsible to provide the noneconomic loss benefits sought by Charles P. Ector, Appellee. I write separately only to express additional reasons for this view.

The Appellant argues that Ector is not entitled to uninsured motorist benefits because the vehicle which caused his injury was insured by it at the time of the accident. Admittedly, there was a policy of insurance covering the automobile when it was stolen and later injured Mr. Ector. However, for uninsured motorists purposes, the vehicle was uninsured. 75 Pa.C.S.A. § 1701 defines an uninsured motorist vehicle as follows:

“(1) A motor vehicle for which there is no liability insurance or self insurance applicable at the time of the accident.”

The policy issued by Motorists, which contained third-party liability insurance, does not provide coverage in this case. That policy provides under the liability exclusions:

“(a) We do not provide liability coverage for any person:
8. Using a vehicle without a reasonable belief that the person is entitled to do so.”

Even though there was a liability policy of insurance on the vehicle at the time of the accident, the unauthorized use of the vehicle means that it was not insured for liability purposes.

The next question is whether the assigned benefits plan carrier, Travelers, or the carrier insuring the vehicle, Motorists, has responsibility for the uneconomic insurance benefits. Had Mr. Ector been entitled to receive economic benefits, there is no question that he would have received those from the carrier insuring the vehicle. Both 75 Pa.C.S.A. § 1713 titled “Source of Benefits” and the Motorists policy so provide. 75 Pa.C.S.A. § 1713 “Source of Benefits” states:

(a) GENERAL RULE.
Except as provided in § 1714 (relating to ineligible claimants), a person who suffers injury out of the maintenance or use of motor vehicle shall recover first party benefits against the applicable insurance coverage in the following order of priority:
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident____

Also, endorsement Ulll 10-85 of the Motorists policy defines an insured for first party benefits coverage as: “INSURED” means:

1. You or family member;
2. Any other person:
a. while occupying your covered auto; or
b. while not occupying a motor vehicle if injured as a result of an accident in Pennsylvania involving your covered auto.

It is clear from both the statutory language and the policy provisions that Motorists is the benefits provider under the MVFRA. Further, it is clear that for the purposes of uninsured motorists coverage, there is no liability insurance available as a result of this accident involving a stolen, vehicle.

We must next determine whether the benefits provider is responsible for providing uninsured motorists benefits to an injured claimant and I agree with the majority that the answer is yes. My agreement stems from my view that the Majority properly analyzes and applies the cases of Tubner v. State Farm Mutual Auto Insurance Co., 496 Pa 215, 436 A.2d 621 (1981) and Prudential Insurance Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984). In addition, further support for this view is found in the MVFRA. This act created an assigned claims plan for the payment of benefits to a person who otherwise would not be insured but who would qualify. 75 Pa.C.S.A. § 1754 provides additional coverage to such persons making claims under the assigned claims plan and states:

An eligible claimant who has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort against a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury up to $15,000 subject to an aggregate limit for all claims arising out of any one motor vehicle accident of $30.000____

The legislature in passing the MVFRA, codified case law expressed in Tubner and Prudential by mandating the assigned claims plan carrier provide uninsured motorist coverage. From this I conclude that the legislative intent is evident and it is that injured claimants in Pennsylvania who otherwise qualify under the Act, should receive both first party benefits and uninsured motorists benefits, if applicable, from the carrier that is responsible for providing first party benefits.

To adopt the view advanced by the Appellant would create a class of injured claimants whose benefits would be limited below those which the legislature established.

      . This rule provides that “[e]xcept where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or .a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.” Pa.R.A.P. 501.

      . We distinguish the principle of appealability established in Mitchell, a multi-defendant suit, from the usual proposition that the denial of summary judgment is not an appealable order. "[A]n order granting a defendant’s motion for summary judgment has been held to be a final and appealable order.” Sweener v. First Baptist Church of Emporium, Pennsylvania, 516 Pa. 534, 536, 533 A.2d 998, 1000 (1987).

      . This case is discussed earlier in this opinion within the discussion of standing.

      . The Financial Responsibility Law defines an "Uninsured Motor Vehicle” as:
      (1) A motor vehicle for which there is no liability insurance or self-insurance applicable at the time of the accident.
      (2) A motor vehicle for which the insurance company denied coverage or the insurance company is or becomes involved in insolvency proceedings in any jurisdiction.
      (3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident resulting is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.

        Id. at § 1701.

      . We emphasize that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.Cons.Stat.Ann. § 1921(a) (Purdon Supp. 1989).


author: OLSZEWSKI, Judge:

text:
    571 A.2d 464
    Robert ZACKHERY, a Minor By and Through His Parent and Natural Guardian Elaine YOUNG, and Elaine Young, in Her Own Right, Appellants, v. CRYSTAL CAVE CO., INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1990.
    Filed March 19, 1990.

      Howard M. Girsh, Philadelphia, for appellants.
    John R. McHaffie, Philadelphia, for appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment. The facts, as summarized by the trial court follow:

On August 13, 1986 minor Plaintiff Robert Zackhery allegedly broke his leg and sustained other injuries when he fell from a sliding board on a playground at Defendant Crystal Cave’s premises in Berks County, Pennsylvania, near Kutztown. Defendant owns 125 acres of land there which includes the playground, a parking lot, several buildings, and a natural underground cave. The playground has several sliding boards which are permanently installed. Defendant Crystal Cave only charges an admission fee for the natural underground cave, but not for using the parking lot or the playground.

Trial court opinion, at 1. Appellants make no allegation that the injuries sustained were the result of a willful or malicious failure of appellee. Appellee Crystal Cave Co., Inc. filed an uncontested motion for summary judgment based on a claim of immunity under the Recreational Use of Land and Water Act, 68 P.S. § 477-1 et seq. (“RULWA”). The trial court granted appellee’s motion on April 26, 1989, and an order was docketed, dismissing appellants’ complaint with prejudice. This timely appeal followed.

Appellants’ sole issue on appeal is whether the immunity granted by the RULWA is extinguished as to all adjoining land owned by a defendant where the defendant charges admission to a portion of his land.

In reviewing an order granting summary judgment our function is to determine whether issues of triable fact exist. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). Summary judgment is proper only in cases free and clear from doubt, and for our review we accept as true all well-pleaded facts, giving the plaintiff the benefit of all reasonable inferences from the facts. Roland v. Krayco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986).

Under the RULWA, a landowner is entitled to immunity when three conditions coalesce: (1) the landowner did not willfully or maliciously fail “to guard or warn against a dangerous condition, use, structure, or activity” on the land, 68 P.S. § 477-6; (2) the landowner did not charge the plaintiff for the recreational use of the land, id.; and (3) the injured plaintiff entered the land for “recreational purposes,” id. at § 477-3.

Gallo v. Yamaha Motor Corp., U.S.A., 363 Pa.Super. 308, 313, 526 A.2d 359, 364 (1987).

As stated previously, appellants make no allegation that appellee willfully or maliciously failed to warn appellants of a dangerous condition, nor can there be any serious question whether appellants’ use of a sliding board constituted a “recreational purpose.” The question before us concerns the second of these three factors: whether appellee’s charging customers for entry into an underground cave removes appellee’s 125 acres of above-ground land from the immunity granted by the RULWA.

Appellants argue that Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510 Pa. 1, 507 A.2d 1 (1986), requires us to construe the RULWA narrowly, in accordance with the modern trend against tort immunities. While Rivera does indeed refer to the modern trend against tort immunities, it does so in reference to the argument that the RULWA should confer immunity to the owner of an indoor, urban, enclosed swimming pool to which there was no general public access. Rivera holds that the Legislature intended to limit the immunity conferred by the RULWA to “outdoor recreation on largely unimproved land.” Id., 510 Pa. at 8, 507 A.2d at 8.

Our Commonwealth Court has held, since Rivera, that an outdoor playground is recreational land as defined by RULWA, 68 P.S. § 477-2. Walsh v. City of Philadelphia, 126 Pa.Cmwlth. 27, 558 A.2d 192, appeal granted, 523 Pa. 645, 565 A.2d 1169 (1989). We are in agreement with the Commonwealth Court. The RULWA’s definition of “land” encompasses “buildings, structures and machinery or equipment when attached to the realty.” 68 P.S. § 477-2(1). The sliding board on which minor appellant was injured comes within this definition of “land.” Cf. Lowman v. Indiana Area School Dist., 96 Pa.Cmwlth. 389, 507 A.2d 1270 (1986) (baseball bleacher on which plaintiff was sitting was part of the land).

A recent case from our Commonwealth Court is instructive concerning whether the immunity of the RUL-WA applies in this case. In Kniaz v. Benton Borough, 112 Pa.Cmwlth. 416, 535 A.2d 308 (1988), the plaintiff was injured when a picnic bench on which he was seated overturned. The bench was located in a borough park, to which the plaintiff had free access with no admission charge. While the plaintiff argued that the borough should be held liable because a volunteer fire company was conducting a bingo game in the park at the time he was injured, the court held the borough was immune. The court reasoned that “[a]ny fee paid by the plaintiff for participation in the volunteer fire company’s bingo ... could not constitute an admission charged by the borough as owner, for entry to the park or its facilities.” Id., 112 Pa.Commonwealth Ct. at 417, 535 A.2d at 309.

In this case, as in Kniaz, it remains undisputed that appellee did not charge appellants for admission to the property. In Kniaz, the payment of a fee to play a bingo game was held not to constitute a charge for use of the property. In the instant case, the fact that appellants would have been charged a fee to enter appellee’s nearby cave does not change the fact that appellants had free access to the playground.

The stated purpose of the RULWA is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” 68 P.S. § 477-1. Nowhere does the statute even hint that the immunity for an entire parcel of land should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. We decline appellants’ invitation to create such a restriction.

Appellants have made no allegation that appellee willfully or maliciously failed to warn appellants of any hazard. It is undisputed that appellants were not charged admission to the playground or to the adjacent parking lot, and that appellants entered the playground for recreational purposes. We therefore hold that the trial court did not err in granting summary judgment and dismissing appellants’ complaint.

Order affirmed.

      . Appellee argues that by failing to oppose appellee’s motion for summary judgment, appellants failed to preserve any issues for our review. In Eckenrod v. GAF Corp., 375 Pa.Super. 187, 189 n. 2, 544 A.2d 50, 52 n. 2 (1988), this Court stated:
      Appellees ... contend that appellant ... has waived its right to appeal by not challenging the motions for summary judgment in the trial court. We note, however that an order granting summary judgment is final and appealable. Therefore, appellant ... was not required to raise challenges to the motions or the order in the trial court.
      (Citation omitted.) Further, the issue before us is not being raised for the first time on appeal. The issue proposed by appellants is the same as that on which the trial court rendered its decision: whether appellee is protected by the RULWA’s immunity where an appellant was injured on a portion of appellee’s property to which no admission was charged. We therefore address the merits of this appeal.


author: KELLY, Judge: WIEAND, Judge,

text:
    571 A.2d 466
    Richard T. ACRE, Jr. and Debra L. Acre, his Wife, Appellants, v. NAVY BRAND MANUFACTURING COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Submitted July 10, 1989.
    Filed March 16, 1990.

      Kevin R. Lomupo, Pittsburgh, for appellants.
    Thomas M. Fallert, Pittsburgh, for PPG Industries, appellee.
    Alan H. Perer, Pittsburgh, for Navy Brand, appellee.
    Ralph A. Davies, Pittsburgh, for Chemply, appellee.
    Before BROSKY, WIEAND and KELLY, JJ.
   KELLY, Judge:

Appellant appeals from an order striking judgment. We exercise our discretion to permit the appeal which was taken during the phase-in period of amended Pa.R.A.P. 311(a)(1).

On appeal, appellant argues a default judgment entered on the eighth day of the ten day period to respond to a notice of intent to enter default under Pa.R.C.P. 237.1(a), while defective, was cured by re-entry of judgment after the tenth day without striking the defective judgment first and beginning proceedings anew. We affirm the trial court’s determination that such a judgment remains defective and must be struck.

I. Allowance of Appeal

Prior to March 31, 1989, an order striking a default judgment was appealable as of right. On that date the Supreme Court amended Pa.R.A.P. 311(a)(1) to remove the right to an immediate interlocutory appeal of such orders. The Supreme Court’s order provided for the new rule’s effectiveness as follows:

The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.

(Emphasis supplied in original). Difficulty has arisen in determining the intent of the Supreme Court concerning the provision that the new rule shall apply to matters commenced prior to July 1, 1989, “insofar as just and practical.”

In Joseph Palermo Dev. Corp. v. Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989), appellant sought review of an order opening judgment based upon an assertion that the “trial court erred in finding that Mr. Bowers produced evidence in support of a meritorious defense which raised issues of fact susceptible to jury determination.” 564 A.2d at 997. The panel analogized to Pa.R.A.P. 341, and noted that postponing review of the factual issue raised would not result in any irreparable harm. The panel therefore decline to permit immediate appeal of the interlocutory order, finding that it was both just and practicable to apply the new rule in that case.

In non-binding memorandums, Joseph Palermo Development Corp. v. Bowers, supra, has been construed to provide that the new rule will be applied in all cases unless a showing of irreparable harm is made. Published dissents to those memorandums have criticized such readings of the new rule. See Gallelli v. Fireman’s Ins. Co., 389 Pa.Super. 375, 567 A.2d 336 (1989); Lites v. Berman, 390 Pa.Super. 10, 567 A.2d 1093 (1989).

We agree with the published dissents insofar as they suggest that a showing of irreparable harm to appellant’s substantive rights is not required. We do not read Joseph Palermo Dev. Corp. v. Bowers, supra, to impose such a requirement, nor could it have reached out beyond the facts and issues presented in that case to have decided such a matter. We find Joseph Palermo Dev. Corp. v. Bowers, supra, to be materially distinguishable from the instant case.

In that case, analogy to the final order doctrine was apt; here, even if apt, such an analogy is incomplete. Under the rules of appellate procedure an appeal from an interlocutory order may be taken by permission when an issue of law is presented, there are substantial grounds for disagreement upon the issue, and immediate appellate determination may materially advance termination of the matter. Pa.R.A.P. 1312(a)(3-5). While this rule had no analogy to the exercise of our discretion under new Pa.R.A.P. 311(a)(1) in Joseph Palermo Development Corp., supra, it has analogous application here.

The issue presented here on appeal is whether a defective default judgment prematurely entered may be cured by re-entry of judgment after the proper notice period expired without first striking the defective judgment and recommencing the default judgment process. Had new Pa.R.A.P. 311(a)(1) been effective at the time the order striking judgment was entered, appellant could have petitioned for permissive review of this novel and potentially dispositive issue of law, and we would have been inclined to grant it. The 30 day period for seeking such review has long since past. Pa.R.A.P. 1311(b). Thus, in a limited sense the application of the rule here would result in “irreparable harm” in that the right to seek permissive review was “irretrieviably lost” while appellant pursued his then proper appeal of right, rather than the now proper petition for review. Consequently, we consider it neither just nor practicable to apply new Pa.R.A.P. 311(a)(1) in this case. We conclude that Joseph Palermo Dev. Corp., supra, is distinguishable, and that the appeal is properly before us for review.

II. Attempt to Cure a Defective Default Judgment

Richard T. Acre, Jr. and Debra L. Acre filed a complaint in which they alleged that Richard had contracted hepatitis, with resulting liver damage, because he had inhaled vapors from chemicals manufactured and/or sold by the defendants, PPG Industries, Inc., Navy Brand Manufacturing Company, and Chemply, a division of United Chemicals, Inc. When Navy Brand Manufacturing Company (Navy Brand) failed to file a timely answer, plaintiffs caused a default judgment to be entered against it. The trial court, in response to a motion to strike or open the judgment, determined that the judgment was defective and ordered that it be stricken. The plaintiffs appealed. We affirm.

After the time for filing an answer had expired, the plaintiff-appellants mailed notice of intent to enter a default judgment to Navy Brand, as required by Pa.R.C.P. 237.1. This notice was mailed on December 14, 1987. Eight days later, on December 22, 1987, the plaintiff-appellants caused the default judgment to be entered. The judgment was clearly defective and subject to being stricken on motion. Rule 237.1 required that a notice of intent to enter a default judgment must be sent at least ten (10) days prior to the filing of the praecipe for default judgment. See Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A.2d 1166 (1987); Fountainville Historical Farm Association of Bucks County, Inc. v. Bucks County, 340 Pa.Super. 412, 490 A.2d 845 (1985); Lauer v. Fannell, 34 D. & C.3d 62 (Luzerene Cty.1984); 11 Std.Pa.Prac.2d § 68.11. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Pa.R. C.P. 237.1. Fierst v. Commonwealth Land Title Insurance Co., 369 Pa.Super. 355, 360, 535 A.2d 196, 198-199 (1987).

The error of the premature judgment evidently was soon thereafter discovered and brought to the attention of the prothonotary. On January 5, 1988, the prothonotary entered a notation in the docket as follows:

Judgment entered in error, corrected 1/5/88, Jan. 6, 1988 on praecipe [judgment] entered against Navy Brand Mfg. Co. by default. Notice of intent dated 12/14/87. Notice mailed 1/6/88. (R-48)

A notation was also made in the judgment index to indicate that the first entry of default judgment had been made in error. On January 18, 1988, counsel for Navy Brand filed a petition to open or strike the judgment. The trial court, as we have observed, ordered the judgment stricken.

The issue to be decided is whether a default judgment which is defective because entered less than ten (10) days after giving notice under Rule 237.1 can be perfected, without additional notice, by a re-entry of the judgment more than ten days after the original notice.

Although Rule 237.1 is silent with respect to this issue and the courts have not spoken thereon, we conclude that a new notice must be given and an additional ten days must expire before a valid judgment can be entered. To hold otherwise would be to deprive the defaulting party of the full ten day period which the rule intended to provide for curing the default. After a premature default judgment has been entered, the defaulting party is required to move to strike the judgment, and, unless the judgment is removed, he cannot defend the action on the merits. Rule 237.1, however, was intended to provide a full ten days following notice within which to cure the default. See Explanatory Note — 1979, Pa.R.C.P. 237.1.

To allow the judgment to remain in this case would be to permit appellants to enter a default judgment after the expiration of only eight (8) days following the mailing of notice under Rule 237.1. The judgment was not thereafter opened or stricken at any time so as to give Navy Brand the full period allowed by the rule to cure the default by filing a responsive pleading. Because the full time allowed for curing the default was not given, the trial court correctly ordered the judgment stricken.

Order affirmed.

WIEAND, J., concurs.

WIEAND, Judge,

concurring.

I concur in the majority’s affirmance of the trial court’s order. I disagree with my colleagues of the majority only to the extent that they hold that the plaintiffs’ right of appeal is discretionary with this Court. The trial court’s order striking the default judgment was entered on October 24, 1988. An appeal was filed within thirty (30) days thereafter. Such an appeal was then specifically permitted by Pa.R.A.P. 311(a)(1). Therefore, it was not subject to being stricken or quashed. Pa.R.A.P. 311(a)(1) was not amended by the Supreme Court until March 31, 1989, and it did not become effective until July 1, 1989. For reasons more specifically set forth in my Dissenting Opinion in Lites v. Berman, 390 Pa.Super. 10, 567 A.2d 1093 (1989), I would hold that the amended rule cannot be applied retroactively to render improper an appeal filed before the amended rule became effective, much less to an appeal filed before the amendment was adopted. Because the appeal in this case was properly filed, our consideration of the merits thereof is not discretionary. As in all cases in which an appeal is properly filed, the Superior Court is mandated to review the substantive issues which have been preserved in the trial court and argued on appeal.

      . The default judgment was entered against Navy Brand alone. Thus, the other defendants are not parties to the present appeal.

      . Pa.RX.P. 237.1(a) provides as follows:
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

      . At the time when this appeal was filed, Pa.R.A.P. 311(a)(1) provided as follows:
      (a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
      (1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

      . Amended Pa.R.A.P. 311(a)(1) provides as follows:
      (a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
      (1) Affecting Judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating, or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

        The Supreme Court order adopting the amended rule provided as follows:
      The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.

      . A contrary decision by a panel of this Court in Joseph Palermo Development Corp. v. Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989), is, in my judgment, an erroneous interpretation of the order amending Pa.R.A.P. 311(a)(1).


author: HOFFMAN, Judge:

text:
    571 A.2d 470
    In re Christopher SWOPE, Angela Mancini, Stephanie Mancini. Appeal of Geraldine SWOPE.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed March 15, 1990.

      Lisa P. Fevola, Harrisburg, for appellant.
    Georgene Siroky, Pittsburgh, for appellee.
    James A. Esler, Pittsburgh, for Children and Youth Services, participating party.

      Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a dependency order dated April 21, 1989, by which appellant’s minor child, Christopher, was adjudicated “dependent” under the Juvenile Act (the “Act”). 42 Pa. C.S.A. § 6301 et seq. Although the child is currently in the physical custody of his mother, appellant herein, the order placed him in the legal custody of Allegheny County Children and Youth Services (“CYS”). Appellant filed this appeal after Christopher was adjudicated dependent and removed from her physical custody. Appellant contends that CYS failed to sustain its burden of showing that Christopher was “dependent” under the Act. We agree and, accordingly, vacate the order below and remand for proceedings consistent with this opinion.

Appellant is the natural mother of Christopher. On April 5,1989 CYS received a report that Christopher, then age 12, and his two sisters, ages 9 and 5, had been mistreated by their mother. CYS obtained an emergency custody order and removed the three children from appellant for questioning. After questioning the children, CYS determined that only the allegations about Christopher could be substantiated; the younger children were returned to appellant and Christopher was placed with his maternal grandparents. On April 18, 1989, all three children met with Dr. Neil Rosenblum for a psychological evaluation. Dr. Rosenblum believed Christopher to be telling the truth and recommended that he be left in the care of his grandparents. Dr. Rosenblum also felt that the two younger children were not in danger and could be left with their mother. On April 21, 1989, a hearing was held to determine whether the three children were “dependent.” Testimony was presented by Dr. Rosenblum, the CYS caseworker, Christopher, appellant, and others. The central dispute at the hearing was whether Christopher’s allegations that he had been abused were credible. At the conclusion of the hearing, the court, finding Christopher credible and appellant not credible, adjudicated Christopher dependent. See N.T. April 21,1989 at 101-03. Legal custody of Christopher was given to CYS. Disposition of the other two children was deferred until July 21, 1989. This appeal followed.

The burden of proof in a dependency proceeding is upon the petitioner attempting to remove custody from the parent. The petitioner must show that the juvenile is without proper parental care, and that such care is not immediately available. See In re T.D., 381 Pa.Super. 300, 553 A.2d 979 (1988). These facts must be proved by evidence that is clear and convincing. See In the Matter of Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983); In Interest of Ryan Michael C., 294 Pa.Super. 417, 420, 440 A.2d 535, 536 (1982); see also 42 Pa. C.S.A. § 6341(c).

In the case, the court found Christopher dependent because “he’s without proper parental care or control.” N.T. April 21, 1989 at 101. In making this determination, however, the court must consider “not only what sort of parental care the child received in the past, but also what sort of parental care the child will receive if custody is given to the parents.” Interest of Ryan Michael C., supra at 420, 440 A.2d at 536 (citing In the Interest of K.B., 276 Pa.Super. 380, 419 A.2d 508 (1980); In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976)); see also In re T.D., supra; In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). Because a finding that a child is dependent is very serious and could potentially effect a child’s future attitude toward and relationship with his parent, we have urged trial courts to make comprehensive inquiries before concluding that a child is without proper parental care or control. See In re T.D., supra; In re Frank W.D., 315 Pa.Super. 510, 516, 462 A.2d 708, 711 (1983). In this case, it does not appear that such a comprehensive inquiry was made.

The testimony presented in support of the dependency petition focused on alleged acts of abuse by appellant and her boyfriend. In particular, the CYS caseworker testified that, when she interviewed Christopher, he told her that (1) his mother made him eat mustard, pepper, and vinegar sandwiches; (2) shaving cream was put in his mouth when he lied; (3) he was not allowed outside to play; (4) when he was hungry he was locked between the front door and the screen door; (5) his mother threw water in his face to awaken him; and (6) he was not allowed to watch television. See N.T. April 21, 1989 at 7-8. The CYS caseworker also stated that Christopher’s initial allegations led to him being removed from appellant’s custody. She went on to say that, on the morning of the hearing, Christopher admitted to her that he had lied about the initial allegations. Id. at 12. Dr. Rosenblum then testified about his examination of Christopher and the other children. Dr. Rosenblum stated that when Christopher met with him, he had made allegations that were similar to the ones to which the CYS caseworker testified. Id. at 18. Dr. Rosenblum also spoke with Christopher’s grandfather who reluctantly confirmed that the alleged acts of abuse had occurred. Id. at 19. Dr. Rosenblum admitted that he had never spoken with appellant or Christopher’s school concerning the allegations. Id. at 20-21, 36. The final witness presented in support of the petition was Christopher. In his testimony, Christopher recanted his statement that he lied that morning to the CYS caseworker. Id. at 54. However, when asked to tell the court what his initial allegations had been, the only specific instance of abuse he could recall was being shut between the door and screen door. Id. at 55. Despite his allegation to the contrary, on cross-examination, Christopher admitted that he had been allowed to play outside. Id. at 58-59.

Appellant presented testimony disputing the allegations of abuse. In particular, Janey Nock, a friend of appellant’s, testified that she had seen Christopher playing outside and riding a bike. Id. at 65. She also testified that appellant cooked healthy balanced meals for Christopher and the other children. Id. at 65-66. With regard to discipline, Nock testified that to the best of her knowledge, appellant yelled at her children but had not harmed them physically or made them eat mustard, pepper, and vinegar sandwiches. Id. at 67. Appellant also took the stand and denied the allegations. Id. at 88. Specifically, appellant denied that (1) Christopher was not allowed to play outside; (2) she made the children eat mustard, pepper, and vinegar sandwiches; (3) she put shaving cream in the children’s mouths; and (4) she did not allow Christopher to eat when he was hungry. Id. at 88-90, 95. While presenting her defense, appellant also presented testimony from an intake officer, for the Shuman Center, who was authorized by the court to issue emergency custody authorization for CYS. The officer’s testimony concerned the limited scope of the investigation that was undertaken before issuance of an emergency petition to permit removal of Christopher and the other two children. In particular, she testified that the CYS worker called and repeated allegations to her that the officer had heard in a phone call. On the basis of these allegations, the authorization was granted; the CYS caseworker had not made any attempt to verify the allegations or to talk with either the children or appellant. Id. at 72-76. In addition, appellant re-called the CYS caseworker to show that one of the allegations conveyed to her in the phone call, that Christopher was losing weight, proved to be untrue. Id. at 80-83.

Viewing the case under the aforementioned standards, we conclude that the lower court’s adjudication of dependency cannot stand. As the above summary of the testimony reflects, the hearing below focused entirely on the question of whether the specific acts of abuse had occurred. The evidence on this issue was sharply contested, and, in making its determination, the court had to rely largely on the hearsay testimony of the CYS caseworker and Dr. Rosenblum for the substance of the abusive acts, and a general assessment of Christopher’s credibility. The difficulty in the case is that, even accepting that incidents of abuse had occurred in the past, there was no “comprehensive inquiry” into whether proper parental care was immediately available or what sort of care Christopher would receive in the future if returned to appellant. Indeed, there was no testimony directly addressing appellant’s abilities and shortcomings as a parent, nor was there testimony about whether the alleged acts were isolated incidents or were likely to recur. Also absent from the testimony is any professional evaluation of appellant’s parenting abilities and Christopher’s prospects with her. In this regard we also note that there was no testimony that would have explained why appellant could be considered capable of rendering proper parental care and control to her younger children, while at the same time, incapable of rendering such care to Christopher. Instead, the order appears to have been based solely on the seriousness of appellant’s past conduct. While we do not wish to downplay the inappropriateness of that conduct, we also are not prepared to hold — at least absent some testimony on appellant’s parenting abilities — that the isolated incidents as set forth in the record are of such a nature as to warrant the conclusion that appellant would be incapable of rendering proper care in the future. See In Interest of H.B., 293 Pa.Super. 109, 115-16, 437 A.2d 1229, 1233 (1981) (evidence suggested mother had neglected her child's physical and emotional well-being insufficient to show appellant incapable of proper care in future). Cf. In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980) (evidence that parents’ two previous children had died because of improper care and precautions taken by parents warranted finding of dependency of newborn infant).

For the foregoing reasons, we vacate the order of the lower court and remand for further proceedings at which the parties may present evidence regarding appellant’s present capacity to provide the necessary care and control for Christopher.

Order vacated and case remanded. Jurisdiction relinquished.

      . At that time, Christopher was permitted to live with his maternal grandparents. Subsequently, at his request, Christopher has been returned to appellant’s physical custody.

      . Appellant also contends that (1) the seizure of her children violated both her right and the right of her children to be free from unreasonable search and seizure and (2) the court erred in allowing Dr. Neil Rosenblum to testify as an expert and allowing him to give hearsay testimony over her objection. Because of our disposition of appellant’s first claim, we need not address these issues.


author: POPOVICH, Judge: MONTEMURO, Judge,

text:
    571 A.2d 474
    Paul J. CHIRICOS, Appellant, v. FOREST LAKES COUNCIL BOY SCOUTS OF AMERICA, William S. DeLong, Robert H. DeLong and Shirley S. DeLong, His Parents. Paul J. CHIRICOS, Appellee, v. FOREST LAKES COUNCIL BOY SCOUTS OF AMERICA, William S. DeLong, Robert H. DeLong and Shirley S. DeLong, His Parents. Appeal of William S. DeLONG and Robert H. DeLong and Shirley S. DeLong, His Parents.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed March 20, 1990.

      Lawrence A. Durkin, Scranton, for appellant.
    Randall W. Turano, Stroudsburg, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This case involves cross-appeals from the April 5, 1989, order of the Court of Common Pleas of Wayne County entering summary judgment against the plaintiff/appellant Paul J. Chiricos, but denying the cross-claim of the co-defendants/appellants William S., Robert H. and Shirley S. DeLong against the co-defendant/appellee Forest Lakes Council, Boy Scouts of America. We affirm.

In determining whether the order issued is to be affirmed, we are required under Pa.R.Civ.P. 1035(b) to examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to ascertain whether the record shows that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law.

Under such a standard, the record discloses that on February 25, 1984, the 13-year-old William S. DeLong informed one of hjs parents that he was going for a ride on his Suzuki 185 all-terrain vehicle (ATV). Accompanying William was his 12-year-old friend Jeffrey John Rowen; he would be riding a motorcycle.

The terrain over which the boys had decided to travel was to consist of the Lake Wallenpaupack Estates, which is adjacent to the 560-acre Forest Lakes Council Boy Scouts of America reserve. Dissecting the reserve is Legislative Route 951, and it had to be crossed to reach a site on the reserve known to the youth as “Goose Pond”. This was a location where the boys had ridden in the past. They did so even though they were aware that the site was private property and had some “no trespassing” signs posted throughout the campgrounds. In fact, William’s father (Robert) admitted to informing his son not to enter Goose Pond since it was known that the Boy Scouts did not want people riding on their property.

Even though it was not uncommon to see kids engaging in “hill climbs” on “Pump Station Hill”, William was “specifically told Goose Pond was off limits” by his father.

On the date in question, William and Jeffrey first drove over a series of trails in Lake Wallenpaupack Estates. Thereafter, the two boys crossed Route 951 and this placed them in the Boy Scouts’ camp; it was “just someplace also to go”.

As William was in the lead, with Jeffrey following, he was in the process of traversing a grade in the dirt path leading off the property and onto Route 951 when he saw a scoutmaster (the plaintiff Chiricos) “running” toward him waving his hands. It seems that Chiricos, once he heard the sounds of the ATV and motorcycle, left his position on a nearby hill to pursue the riders some one hundred feet away.

Chiricos stationed himself in the path of William’s ATV and was struck. The contact resulted in Chiricos being struck on his right leg by the left, rear tire of the ATV, and it flung him into the air. His body landed half on Route 951 and the remainder came to rest on Boy Scout property. William continued to drive from the scene with Jeffrey following.

Efforts on the part of the plaintiff to have the Boy Scouts commence criminal charges against William were to no avail. Consequently, aside from having William placed on two years probation for his conduct against the plaintiff, a writ of summons was issued against Forest Lakes Council Boy Scouts of America. In turn, a rule was entered on the plaintiff to file a complaint, which claimed in Count I that William was a trespasser on Forest Lakes’ property and. negligently caused the plaintiff to be injured when he was struck by William’s ATV:

The Plaintiff stood on the berm of the road and waved his hands and shouted “Hey”, continuously in order to warn the Defendant, DeLong, that he was a trespasser on private property and endangering the safety of the campers at Goose Pond Scout Reservation____ Paragraph 10.

Count II alleged that William’s parents were liable for his negligence. In Count III, Forest Lakes was charged with negligence in failing to secure the campgrounds and to enforce the “no trespassing” prohibition despite numerous prior incidents of trespassers and vandals on the premises. All of which was claimed to be, on the part of the DeLongs and Forest Lakes, the direct and proximate cause of the plaintiff’s injuries.

The DeLongs filed an answer which denied, inter alia, that the son was a trespasser. And, as to striking the plaintiff, it was averred that the “Plaintiff attempted to grab the arms of the said William S. DeLong, which attempt caused him to come in contact with the vehicle being operated by ... William____” Paragraph 10. It was also alleged that “it was solely through the actions of the Plaintiff that the Defendant’s vehicle struck him” and not through any negligence and carelessness of William. Paragraphs 11 & 12.

In the new matter portion of the DeLongs’ reply, it was averred that through the plaintiff’s own negligence in attempting to grab William, he “assumed the risk that would result from the actions which he took at the time alleged in the Complaint.” Paragraphs 35-38.

The DeLongs also filed a cross-claim contending that the plaintiff’s injuries were “due solely to the negligence” of Forest Lakes and rendered it “solely and individually liable to the Plaintiff or liable jointly with the Defendants or liable over to the plaintiff____” Paragraph 45.

Forest Lakes filed a motion for summary judgment. This was opposed by the plaintiff and co-defendant DeLongs in that they claimed that there were issues of fact to be resolved by a jury. However, the DeLongs argued in the alternative, seeking 1» join in the co-defendant Forest Lakes’ motion, that the plaintiff’s assumption of risk should entitle them to the same relief sought by Forest Lakes.

In Forest Lakes’ motion, it propounded in relevant part that:

11. Whether Plaintiff was an invitee or a licensee, the duty imposed upon Defendant, Forest Lake[s] Council, Boy Scouts of America, was to take reasonable precautions to protect and/or warn Plaintiff of possible dangerous conditions.
12. By posting the property and employing a maintenance man to patrol said property, Defendant, Forest Lake[s] Council, Boy Scouts of America, took all reasonable precautions required of it and therefore did not breach its duty towards Plaintiff.
13. Whether Plaintiff was an invitee or licénsee, there was no obligation or duty upon Defendant, Forest Lakes Council, Boy Scouts of America, to protect Plaintiff against dangers of which Plaintiff was aware, or which were so obvious or apparent to Plaintiff that he could be expected to discover them for himself.
14. Because Plaintiff had actual knowledge of the alleged dangerous condition, Defendant, Forest Lake[s] Council, Boy Scouts of America, had no obligation or duty to protect Plaintiff from the danger known to him.
15. Defendants, William S. DeLong, Robert H. DeLong and Shirley S. DeLong, his parents, filed a Crossclaim against Defendant, Forest Lake[s] Council, Boy Scouts of America, alleging that Plaintiff’s injuries were due solely to the negligence of Defendant, Forest Lakes Council, Boy Scouts of America.
16. Defendants, (DeLongs) have not alleged any duty towards Defendant, William DeLong, who was a trespasser upon the Goose Pond Scout Reservation.
17. If Defendant, Forest Lakes Council, Boy Scouts of America, did not breach their duty towards Plaintiff, and is not alleged to have breached any duty towards Defendants (DeLongs), it cannot be held liable over to or jointly liable with Defendants] (DeLongs).

With all the pertinent documents present for the evaluation of Forest Lakes’ motion for summary judgment under Rule 1035, the court below concluded that the plaintiff was an invitee and, as such, was owed the duty of care defined by Restatement (Second) of Torts, Sections 343 & 343A.

From a reading of the record (pleadings, answers to interrogatories and depositions), the court held that:

... the danger posed by the Defendant’s all terrain vehicle was obvious because both the presence of said vehicle and its risk would have been apparent to and recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment. Restatement, supra, section 343A comment b. It is also fair to state that the danger was known to the Plaintiff because he recognized that it was dangerous and appreciated the probability and gravity of the threatened harm. Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the Court where reasonable minds could not differ as to the conclusion. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Therefore, the Court holds that the Boy Scouts owed no duty to the Plaintiff because of the obviousness of the danger and the Plaintiffs [sic] certain knowledge regarding it. The Forest Lake[s] Council Boy Scouts of America Motion for Summary Judgment must be granted.

By Opinion and Order dated April 5, 1989, Forest Lakes’ motion for summary judgment as to Count III of the complaint was granted, whereas the DeLongs’ crossclaim against Forest Lakes was dismissed. With the entry of the order in question on the docket, separate appeals therefrom were taken by Chiricos and the DeLongs.

The first claim posited for our review is one of whether the court below erred in finding no genuine issue of material fact existed as to whether Forest Lakes breached a duty of care owed to Chiricos. In particular, the categorizing of Chiricos as an invitee who possessed knowledge of the dangerous condition (of the ATV), as well as his awareness of the hazards posed (by the ATV), were subject to material factual disputes more appropriately left to a jury to decide. And, that the “reputation” of Goose Pond as an area for motorized vehicles and the “precautions” taken by Forest Lakes to prevent continued use of its property for just such a purpose were open-ended questions not subject to summary judgment.

Further, Chiricos argues that Forest Lakes “should have expected” that he would “fail to protect himself from danger”, “despite any knowledge on his part of the danger or its consequences and despite the obviousness of the danger”, in insulating his boy scout troop from the “harm of the approaching ATV”. He directs our attention to Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982) as the “best guidance on this most crucial point”. Chiricos’ Brief at 19-20.

Instantly, unlike the language made reference to by Chiricos in Skalos, we have no evidence of record to show that the possessor of land would have had reason to expect that the invitee’s attention may have been distracted so that he would fail to protect himself, or that the possessor had reason to expect that the invitee would proceed to encounter the known or obvious danger because a reasonable man would have found the advantages to confronting the apparent risk outweighed the danger.

The record establishes that the plaintiff moved from a position of safety (on an archery field where his troop was playing football) to one where he consciously chose to encounter an ATV driven by William S. DeLong, which required that he traverse a section of land at least one hundred feet in length to make the contact. The plaintiff placed himself, with arms waving, in front of the oncoming ATV so as to bring it to a stop. Accordingly, one cannot in good conscience hold (not to mention no record evidence to find) that the plaintiff was “distracted” into failing to protect himself, or that a “reasonable man” would have elected to place himself in a position of danger. As was stated in the deposition testimony of Jeffrey John Rowen, William S. DeLong, and Joseph Muchinsky (who was next to the plaintiff before his leaving to encounter the ATV), the plaintiffs placement of himself in a location where he was exposing himself to potential injury by moving in the direction of the ATV driven by William S. DeLong was one of choice and not fortuitous.

There is not a scintilla of evidence countenancing our reversal of the summary judgment on the grounds that issues of fact are yet to be resolved with regard to Chiricos' “possessing knowledge” and his “awareness” of the ATV and its attendant hazard. As written by the court below, “the Plaintiff was aware of the approach of the all terrain vehicle operated by the Defendant. He even ran toward it.”

As to the efforts ascribed to Forest Lakes in preventing the use of AT Vs on its property (hiring one Michael Karkoska as camp ranger and the posting of “no trespassing” signs) falling below its duty to protect invitees under Sections 343 & 343A of the Restatement (Second) of Torts, we find the argument wanting and do so upon a review of the applicable law, beginning with Sections 343 & 343A of the Restatement (Second) of Torts; to-wit:

Section 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Section 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of a public utility, is a factor of importance indicating that the harm should be anticipated.

Both Sections 343 and 343A were examined by the Supreme Court in Carrender v. Fitterer, 508 Pa. 178, 469 A.2d 120 (1983), in concluding that the plaintiff/Carrender assumed the risk of an “obvious” and “known” danger in parking her vehicle in a space where she encountered ice as she alighted from her vehicle. Although there were several convenient parking spaces free of ice, the plaintiff kept her vehicle in the space she had chosen. Upon returning to her vehicle, she slipped on the ice and sustained injury.

At trial, Carrender won a verdict but on appeal the Supreme Court reversed this Court’s affirmance of the judgment entered in her favor. In doing so, the Carrender Court found that the plaintiff was an invitee and looked to the Restatement (Second) of Torts, §§ 343 and 343A in deciding whether a dangerous condition on the land was “obvious” and “known” to the invitee so as to absolve the possessor of land of any liability.

The Court observed that usually the question of whether a danger was known or obvious was a question of fact for the jury, except the question may be decided by the court where reasonable minds could not differ as to the conclusion.

In reviewing Carrender’s testimony, the Supreme Court concluded that the danger posed by the isolated patch of ice was both obvious and known, and that the defendants could have reasonably expected that the danger would be avoided. Additionally, the Court remarked that:

When an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks. By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.
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... the legal consequence of the invitee’s assumption of a known and avoidable risk is that the possessor of land is relieved of a duty of care to the invitee.

503 Pa. at 188, 469 A.2d at 125 (Citations omitted). Accord Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (en banc).

Instantly, as in Carrender and Malinder, we have testimony from the plaintiff acknowledging an “awareness” of the “obvious” danger posed by that which caused injury. Yet, cognizant of the danger attendant to the ATY, the plaintiff made a conscious choice to place himself in a position of danger from which he could not extricate himself until it was too late to react to the oncoming four-wheel Suzuki 185 driven by William S. DeLong.

For example, during his deposition, Chiricos recounted how he “had to jump off one of the [Goose Pond] trails to let two or three of [the kids on the machines] go flying by”, and this occurred a “couple of years before ... the accident”.

As the plaintiff recalled the accident at issue, he left his position at the archery field where some members of his troop were playing football and traveled a distance of some 100-125 feet on foot to a point where he heard the sounds of the ATV — near the pump station. As told by the plaintiff during questioning by counsel, the events surrounding his accident were as follows:

... That kid had more time in the world to see me flagging him down. I had my red hunting coat on, and I’m flagging, and I’m flagging. Literally, just waving my arms standing there. I ain’t running at the kid. I ain’t running away from the kid. I’m just standing there. Just flagging my arms, and he’s coming up, hey, hey, and like I said the sucker put his head down, and cranked it and that was lights out time.
Q. Where was he at that time?
* # # * # *
A. Well, I couldn’t get out of the way in time so he was only a couple of feet in front of me then ... I was flagging him for way over 100 feet. I was standing here, (indicating)
# # # # # #
Q. How much time elapsed between the time that you saw him crank the vehicle and the impact?
A. Merely seconds because when he cranked, I got creamed. Like I said all I can remember is saying, shit, he’s not going to move.
# * * # * *
A. If I had a chance to get out of the way, I’d have got [sic] out of the way.
Q. At any time when he was approaching you at that time and you were flagging him down, did he slow down at all to your knowledge? Did you see him slow down?
A. No. He just seemed to keep coming steady. I figured any moment he’s going to stop. Any moment he’s going to stop or turn, and I figured wrong.
Q. When he struck you, was he going in a straight line, or did he turn his vehicle towards you if you can remember?
A. Going in a straight line. He was coming straight at me. Now, if he’d have turned within 20, 30 feet before me in any direction, he could have stopped, turned around and went 360 degrees.
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Q. And the impact occurred within the confines of the public road [Route 951], is that correct?
A. Give or take an inch, you better believe it.

(Emphasis added)

In the case at bar, we have a situation where the plaintiff perceived the danger associated with placing himself in a stationary position in the direct line of an approaching all-terrain vehicle, having experienced dodging similar vehicles at the Goose Pond reserve to avoid being struck. Nonetheless, despite the “awareness” of the danger, the plaintiff, viewing the evidence in a light most favorable to him, traveled an extended distance (from a position of safety) and positioned himself, with arms waving, on a direct line with the oncoming ATV, an “obvious” risk apparent to and recognizable by a reasonable man in like circumstances. See Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 132-33, 542 A.2d 525, 531-32 (1988).

The plaintiff did state that he had “no chance” to avoid being hit. However, the more important fact is that the plaintiff placed himself in a position of danger and remained there, exposing himself to injury and hoping that William would divert or stop his ATV before making contact. But, as admitted by the plaintiff in his deposition on this crucial factor, he “figured wrong”, and the consequence for his miscalculation was the sustaining of injury. In other words, he “took no steps to protect himself.” See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351-52, 414 A.2d 100, 104 (1980).

Thus, because we find that the plaintiff “discovered” the dangerous condition on Forest Lakes’ property, which was both obvious and avoidable, Forest Lakes owed no duty of care to the invitee/plaintiff. See Carrender, supra; Malinder, supra, and compare with Howell v. Clyde, 383 Pa.Super. 611, 614, 557 A.2d 419, 421 (1989); Martin v. Recker, 380 Pa.Super. 527, 537, 552 A.2d 668, 673 (1988); Seewagen v. Vanderkluet, 338 Pa.Super. 534, 543, 488 A.2d 21, 25 (1985). Further, we hold that, in light of the plaintiffs knowledge of the danger, the injury incurred by the plaintiff was not something that could or should have been anticipated/foreseen by Forest Lakes. See Restatement (Second) of Torts, § 343A and compare with Skalos, supra.

The next issue we need to address is the cross-appeal of the DeLongs, who claim the court erred in denying their Motion for Summary Judgment.

With regard to summary judgments, it is well-established that an order denying a motion for summary judgment is interlocutory, and, therefore, not normally appeal-able. See Sweener v. First Baptist Church, 516 Pa. 534, 538, 533 A.2d 998, 1000 (1987); 16 Stand.Pa.Prac., 2d, § 86:32 at 201-02. However, the grant of the co-defendant’s (Forest Lakes’) motion for summary judgment places the other co-defendants (DeLongs) out of court on their cross-claim against Forest Lakes. See French v. United Parcel Service, 377 Pa.Super. 366, 370-72, 547 A.2d 411, 413-14 (1988).

Generally, an order is interlocutory unless it effectively puts the litigants out of court, terminates the litigation or disposes of the entire case. French, supra. In applying this rule, “we must look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981). The portion of the order which granted summary judgment in favor of the co-defendant (Forest Lakes) terminated the litigation against it by the DeLongs and constituted a final appealable order. French, supra. As noted in Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985), an order granting summary judgment as to some defendants in a multiple defendant suit is a final appealable order as to those defendants released from the litigation. See also Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985).

In concluding that the order denying Delongs’ motion for summary judgment is appealable on its cross-claim against Forest Lakes, we must now consider the merits of the appeal.

As with Forest Lakes, in reviewing the denial of the DeLongs’ Motion for Summary Judgment, we need to review the record in a light most favorable to the non-moving party to determine whether there is a genuine issue of material fact yet to be decided. Rule 1035. We find there is.

In reciting the facts surrounding the accident, the plaintiff stated that he saw the ATV approaching from a distance of a least one hundred feet. He was attired in a red hunting coat and waving his arms. Thus, the driver/DeLong had all the “time in the world to see” him flagging the ATV. Nonetheless, DeLong ran into the victim as his location in the roadway remained unchanged up until contact occurred. This was corroborated by Joseph Muchinsky.

On the other hand, DeLong’s version of the events was one in which he attempted to evade the plaintiff, that it was the plaintiff who grabbed his arm to remove him from the ATV and that the plaintiff’s movement toward DeLong brought the victim in touch with the ATV. This was buttressed by an eye-witness, Jeffrey John Rowen, the other half of the riding team.

We have two versions: one indicates that DeLong tried to escape the plaintiff and was grabbed by him; the other version indicates that the plaintiff remained in one position, in plain view of the driver and was purposely struck. Thus, this matter is best left in the bailiwick of the jury to resolve under negligence principles. See Prosser, Law of Torts, §§ 29-31 (4th ed. 1971); Pa.’s Comparative Negligence Statute, 42 Pa.C.S. § 7102, which requires that there be two negligent acts: a breach of duty by the defendant to the plaintiff and failure by the plaintiff to exercise care for his own protection. Carrender, supra, 503 Pa. at 188, 469 A.2d at 125.

Thus, the DeLongs’ Motion for Summary Judgment is denied.

Order affirmed.

MONTENURO, J., files a concurring statement.

CERCONE, J., concurs in the result.

MONTEMURO, Judge,

concurring:

I concur in the decision to affirm the summary judgment granted in favor of the Forest Lakes Council Boy Scouts of America. The record amply supports the trial court’s finding that “... the Boy Scouts owed no duty to [Chiricos] because of the obviousness of the danger____” Op. of Trial Court, April 5, 1989, at 5. See Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Further, there is no evidence in. the present case which would bring it within the rule of law enumerated in Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982) (possessor of land is not liable to invitees for physical harm caused by obvious conditions on the land, unless the possessor should have anticipated the harm despite such obviousness).

Although I would affirm the dismissal of the cross-claim filed by the DeLongs against Forest Lakes, I would not address the oral motion for summary judgment raised by the DeLongs. As is evident from their appellate brief, the DeLongs’ oral motion for summary judgment concerned the remaining litigation between Chiricos and the DeLongs. This portion of the case is pending in the trial court and is not directly controlled by the court’s decision to enter summary judgment in favor of Forest Lakes on the claims between Forest Lakes and Chiricos. Thus, a denial of summary judgment under these circumstances would result in an interlocutory order, not subject to appellate review.

      . See Johnson by Johnson v. Walker, 376 Pa.Super. 302, 305, 545 A.2d 947, 949 (1988).

      . The plaintiffs presence on the property was for the purpose which required advance booking by the scoutmaster and the payment of a fee. With such factors present, we find the plaintiff to have been an invitee and not a licensee. See Wiegand by Wiegand v. Mars Nat'l Bank, 308 Pa.Super. 218, 454 A.2d 99 (1982).

      . See DeLongs' Answer, New Matter & Cross-claim at paragraph 42, wherein it is asserted the injury was due solely to the negligence of Forest Lakes, and, therefore, it (Forest Lakes) was alleged to be solely and individually liable or liable jointly with the DeLongs or liable over to the plaintiff. In fact, this "cross-claim” alleging sole, joint or liability over with Forest Lakes by the DeLongs was denied by the opinion and order of court dated April 5, 1989. Further, the claim that the trial court erred in dismissing the "cross-claim” of the DeLongs against Forest Lakes is preserved on appeal. (See DeLongs' appellate brief at pp. 3, 9, 16 and 30)

      . Because we have concluded that Forest Lakes owed no "duty’ to the plaintiff, inasmuch as he perceived the danger and appreciated his circumstances, there would be no purpose served by requiring that it remain as a party to the litigation to somehow insulate the DeLongs from the plaintiff’s allegations of negligence in the operation of the ATV and the supervision of William S. DeLong by his parents.

      . This pending litigation involves issues concerning negligence in the operation of the ATV, negligence in the supervision of William S. DeLong by his parents, and the contributory negligence of Chiricos.