author: DEL SOLE, Judge. HOFFMAN, Judge,

text:
    634 A.2d 1147
    COMMONWEALTH of Pennsylvania v. James E. GALLAGHER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Dec. 9, 1993.

      David J. Foster, Lemoyne, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and HOFFMAN, JJ.
   DEL SOLE, Judge.

Appellant was convicted, following the entry of a guilty plea, on a charge of Driving Under the Influence. A passenger in the car driven by Appellant sustained serious bodily injuries as a result of the accident which led to Appellant’s arrest. Test results indicated that Appellant had a .13 percent blood alcohol level. At the sentencing colloquy Appellant claimed he was forced off the road to avoid an oncoming Nissan automobile that was in his lane of travel.

Appellant was sentenced to pay the costs of prosecution, a fine, a surcharge to the CAT Fund, and undergo imprisonment of six to twenty-three months. While the sentence for a first offense for driving under the influence would ordinarily be forty-eight hours in jail, here the court applied the recommended sentencing guideline ranges found at 204 Pa.Code § 303.5(b), for DUI cases where a victim suffers serious bodily injury.

The question presented is whether Section 303.5(b) of the sentencing guidelines is to be applied absent evidence to establish that defendant’s driving under the influence caused the accident resulting in serious bodily injury to the victim. In order to determine whether the court properly applied the § 303.5(b) guidelines, we must determine whether the guidelines require that causation be proven.

We begin by noting that the sentencing issue presented in this case does not require us to determine whether a substantial question exists to permit the appeal since discretionary review is not implicated. This issue concerns the court’s imposition of a sentence based on its determination that the guidelines apply to the facts of this case. Whether the guideline section applies is a legal not discretionary matter. We found in Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415 (1992), that where the issue on appeal involves a legal question [an improper calculation of a prior record score], a direct appeal is appropriate and Appellant has no need to petition for allowance of appeal since no discretionary sentencing matter is at issue. Similarly, because the case at bar concerns a legal question, not a discretionary one, we address the merits of Appellant’s sentencing issue as a direct appeal.

The provision at issue, 204 Pa.Code 303.5(b), reads as follows:

§ 303.5. Driving under the influence of alcohol or controlled substance and homicide by vehicle while driving under the influence.
(b) When one or more victims suffered serious bodily injury, the guideline sentence recommendations (in months) for convictions under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance) are as follows:
Standard Aggravated Mitigated
Conviction Range Range Range
1st 4-6 6-8 2-4

This section does not state whether the guidelines apply in a situation in which there is no proof that defendant’s intoxication caused the accident. However, the comment accompanying this text states:

Prior Guidelines:
The original guidelines had specific penalties for driving under the influence (DUI). These were eliminated on January 2, 1986 because they were inconsistent with the mandatory minimum sentences for this crime, which were enacted after the 1982 guidelines were promulgated.
This section was amended to provide sentencing recommendations for the offense of DUI when there is serious bodily injury as a result of the DUI. [underlined for emphasis].

This language requires that causation be established in order to apply the guideline ranges of this section.

Such a requirement is consistent with the statutory provisions for offenses involving homicide by vehicle while driving under the influence. The DUI homicide statute, 75 Pa.S.C.A. § 3735, and the relevant case law require that the Commonwealth prove that the conduct of the defendant caused the accident resulting in the death. The language of the homicide by vehicle section reads in pertinent part as follows:

§ 3735. Homicide by vehicle while driving under influence
(a) Offense defined — Any person who unintentionally causes the death of another person as the direct result of a violation of § 3731 (relating to driving under the influence of alcohol or controlled substance) and who is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
75 Pa.S.C.A. § 3735.

While the language of the homicide statute is more specific than that found in § 303.5(b), in light of the comments accompanying § 303.5(b) and the general rationale for requiring causation which has been referred to in cases interpreting the homicide statute, we find causation inherently required, absent a regulation to the contrary.

In decisions involving the homicide of a victim resulting from driving under the influence, Pennsylvania Courts have consistently required a nexus between the death of the victim and the defendant’s driving under the influence. Our Supreme Court in Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) determined that under the homicide by vehicle statute, “a determination must be made as to whether death was a probable consequence of the defendant’s conduct.” Id. at 951. The Court continued to explain that the “causation theory properly applied in criminal cases is not the same as the civil ‘proximate cause’ standard. The defendant’s conduct must be a direct and substantial cause of the injury.” Id. In Uhrinek, the appellant struck and killed a pedestrian who was crossing the street with three friends. According to Appellant’s theory, “the decedent was wearing sunglasses at one in the morning, had just left a party, and caused the accident by suddenly jaywalking into the path of appellant’s car with disregard for his safety due to his intoxication.” Id. 544 A.2d at 952. The Supreme Court reversed Appellant’s conviction because evidence of the deceased pedestrian’s intoxication had been excluded. The Court determined that the refusal to permit appellant to introduce evidence of the decedent’s intoxication and resulting inference that it was his own disregard that caused the accident, prevented appellant from challenging the causal connection between his conduct and the accident. Id. at 952. The Court again held in Commonwealth v. Lenhart, 520 Pa. 189, 553 A.2d 909 (1989), that under § 3735, a DUI violation must be the cause of death in order to sustain a conviction. Because the trial judge stated on the record that he had to speculate as to what actually caused the accident, the Court determined that the conviction was based on conjecture, and vacated the judgment of sentence. Id. 553 A.2d at 912. The Court in Leknart stated that “[i] hardly needs to be said that under our law speculation, possibilities, and probabilities cannot sustain a criminal conviction.” Id. We determined in Commonwealth v. Basinger, 405 Pa.Super. 576, 592 A.2d 1363 (1991), that imposing a sentence on speculation as to the cause of the accident, violated the principle established in Lenhart. Because Appellant’s testimony that he was unable to avoid the accident was believable, we determined in Basing-er that the trial court had abused its discretion by “giving the death of the pedestrian primary importance in sentencing, while relegating the evidentiary findings, character witnesses and presentence reports to an insignificant role.” Id. 592 A.2d at 1366. See also Commonwealth v. Molinaro, 429 Pa.Super. 29, 631 A.2d 1040 (1993). Absent a clear mandate, we will not conclude that a person can receive an enhanced sentence based on a result not caused by that person.

Therefore, we find that a DUI violation must be the cause of the resulting serious bodily injury in order to apply section 303.5 of the sentencing guidelines. In the instant case, the evidence was speculative on the cause of the victim’s injuries. Judge Harold E. Sheely stated in his sentencing order that “the Court cannot make a definite finding as to what causation was as far as this accident was concerned.” See Order of February 23, 1993. Because no causal connection was established between Appellant’s intoxication and the victim’s injuries, the court committed an error of law in applying the recommended sentencing guidelines found in § 303.5. We vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated and case remanded to trial court for resentencing.

(

HOFFMAN, J., files a concurring opinion.

HOFFMAN, Judge,

concurring.

I agree with the ultimate result reached by the majority in the instant case. I write separately to express my concern with the imposition of a causation requirement into the sentencing guideline which is absent from the language of the guideline itself. It is our duty to interpret the sentencing guidelines as they are actually written not as we believe they should be. However, because as the majority correctly points out there is language in the comment accompanying the text of the guideline indicating that a causation requirement was intended, I believe we do not stray too far afield in our imposition of this element. Therefore, I concur in the result reached in the present case.


source: Caselaw Access Project

author: HUDOCK, Judge.

license: Public Domain

text:
    635 A.2d 143
    Gary CENTOLANZA, Glen Centolanza, Gail Danner, Jr., and Jennie Centolanza, t/a Ccubed, and Allentown Diagnostic & Repair Center, Inc., Appellants, v. LEHIGH VALLEY DAIRIES, INC., Beatrice Cheese, Inc., and Atlantic Processing, Inc., trading as Lehigh Farms, Appellees.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Oct. 26, 1993.
    Reargument Denied Jan. 10, 1994.

      Edward Rubin, Lansdale, for appellants.
    Nicholas M. Kouletsis, Philadelphia, for Lehigh Valley Dairies, appellee.
    Sharon Barnes, Allentown, for Atlantic Processing, appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   HUDOCK, Judge.

The facts underlying this appeal, as stated by the trial court, are as follows:

Plaintiffs own an automotive repair center located on approximately one and one-half acres of land in Whitehall Township, Lehigh County, Pennsylvania. The defendant, Lehigh Valley Dairies, Inc., (hereinafter LVDI), owns and operates a dairy processing plant directly upgradient from the plaintiffs’ property. The defendant, Atlantic Processing, Inc., (hereinafter API), was the former owner of this plant. In April, 1984, API sold a portion of the facility to defendant, Beatrice Cheese, Inc., (hereinafter BCI), and later sold the remainder to defendant LVDI. An 8,000 gallon underground storage tank containing No. 6 fuel oil is located on the BCI property and four 10,000 gallon underground storage tanks also containing No. 6 fuel oil are located on LVDI’s property.
Plaintiffs allege that in the summer of 1986, waste water began seeping onto the plaintiffs’ property and, the following summer, No. 6 fuel oil, in addition to the waste water, was discharged onto their property. Plaintiffs allege that at least one of the aforesaid tanks and/or connecting pipes leaked, causing contamination to plaintiffs’ property which required extensive cleanup and remedial action.

Trial Court Opinion at pp. 3-4.

The trial court entered an order which reads as follows:
Now, this 28th day of September, 1992, upon consideration of the Motion for Partial Summary Judgment on behalf of Lehigh Valley Dairies, Inc., the Motion for Summary Judgment or Partial Summary Judgment on behalf of Atlantic Processing, Inc., the Motion for Summary Judgment on behalf of Beatrice Cheese, Inc., the written briefs and oral arguments of counsel and for the reasons expressed in the accompanying opinion;
IT IS ORDERED that the Motion for Partial Summary Judgment of the Defendant, Lehigh Valley Dairies, Inc., is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment of the Defendant, Atlantic Processing, Inc., is DENIED; the Motion for Partial Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment of the Defendant, Beatrice Cheese, Inc., is DENIED.
Appellants raise the following issues in their appeal:
A. Whether Appellants, as private citizens, may recover monetary damages from the Appellees under the Pennsylvania Storage Tank and Spill Prevention Act, Pa.Stat.Ann. tit. 35, §§ 6021.101-.2104 (Purdon 1992).[]
B. Whether the lower court erred in dismissing the request for equitable remedies under the Pennsylvania Storage Tank and Spill Prevention Act.
C. Whether the Appellants, as private citizens, may utilize the legal presumption found in § 6021.1311(a) of the Pennsylvania Storage Tank and Spill Prevention Act.
D. Whether a violation of the Pennsylvania Storage Tank and Spill Prevention Act constitutes negligence per se.

Appellants’ Brief at p. 3.

We must first determine whether Appellants have appealed from a final order, because

[i]t is fundamental,
that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which ends the litigation or, alternatively, disposes of the entire case____ Conversely, an order is interlocutory and not final unless it effectively puts the litigant out of court....
In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications____ The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.
Praisner v. Stocker, 313 Pa.Super. 332, 336-37, 459 A.2d 1255, 1258 (1983) (citations and quotations omitted). Generally, because our courts frown upon piecemeal litigation, “an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Id. However, where separate and distinct causes of action have been joined in one complaint, a judgment entered on one or more of those causes of action is final and appealable because it terminates the litigation upon a separate cause of action and puts the litigant “out of court” on that cause of action. Id., at 341-42,459 A.2d at 1260. ... On the other hand, an order dismissing one or more counts of a multi-count complaint which merely sets forth alternate theories of recovery is interlocutory and not appealable because the plaintiff can still proceed to a determination on an alternate theory. Id., at 313 Pa.Super. at 341, 459 A.2d at 1260.

Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 416-417, 589 A.2d 252, 254-255 (1991). In Dorohovich, we also stated:

An order is final if it puts the aggrieved party out of court “on all theories of recovery asserted against a given defendant for a given loss.” Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). Alternate theories of recovery are different means to recover the same damages or relief for a single harm. Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990) (en banc). Separate causes of action seek different relief for different harms. Id. As such, if a litigant seeks recovery under alternate theories for a given loss, an order dismissing one of those theories is not appealable. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (en banc); Danko, [.Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987)]. If a litigant, however, requests different relief for different harms, an order disposing of one of those requests is an appealable order. Motheral, supra. See also Praisner, 313 Pa.Super. at 341, 459 A.2d at 1260 (“the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided”).

Dorohovich, 403 Pa.Super. at 417, 589 A.2d at 255.

With this standard in mind, we look at the claims which Appellants have made in their complaint. The trial court summarized the claims as follows:

Plaintiffs’ complaint sets forth the following claims for relief: (1) liability under the Hazardous Sites Clean-up Act, 35 Pa.C.S.A. § 6020.101, et seq. [this claim withdrawn]; (2) strict liability for abnormally dangerous/ultra-hazardous activity [this claim withdrawn]; (3) negligence and gross negligence; (4) private and public nuisance; (5) inconvenience and discomfort; (6) loss of use and enjoyment of their property; (7) diminution of the value of their [property]; (8) liability under the Storage Tank and Spill Prevention Act, 35 Pa.S.A. § 6021.101, et seq.

Trial Court Opinion at p. 4.

We note initially that items 5, 6, and 7 above are items of damage, not causes of action, and we will not consider them in our discussion at this point. We also note that the Storage Tank and Spill Prevention Act (STSPA) provides for the recovery of attorney’s fees, § 6021.1305(f), and costs of abatement of a nuisance, § 6021.1304(b). Recovery of attorney’s fees is not otherwise available in a common law action for negligence or nuisance. See J.C. Snavely & Sons, Inc. v. Web M & E, Inc., 406 Pa.Super. 271, 594 A.2d 333 (1991), alloc. den., 529 Pa. 650, 602 A.2d 860. Therefore, because attorney’s fees are an additional item of damage, the damages recoverable under a claim involving the STSPA are different from those recoverable under the other claims made by Appellants. The order granting partial summary judgment is therefore a final order and appealable.

We must next determine whether Appellants are entitled to bring an action under the STSPA. Appellees claim that there can be no private action under the statute. If there is no private action under the statute, then the order granting partial summary judgment was proper on that basis. The determination of whether a private action exists under the STSPA is the linchpin in resolving all of the issues raised by Appellants and is an issue of first impression in our Commonwealth.

The STSPA states in 35 P.S. § 6021.102(b):

(b) Declaration. — The General Assembly declares these storage tank releases to be a threat to the public health and safety of this Commonwealth and hereby exercises the power of the Commonwealth to prevent the occurrence of these releases through the establishment of a regulatory scheme for the storage of regulated substances in new and existing storage tanks and to provide liability for damages sustained within this Commonwealth as a result of a release and to require prompt cleanup and removal of such pollution and released regulated substances.

The STSPA regulates owners and operators of storage tanks by requiring permits and fees and dictating proper uses. 35 P.S. §§ 6021.501 — 6021.506. Furthermore:

A violation of this act or of any order or regulation adopted by the department or of permits issued by the department shall constitute a public nuisance. The department shall have the authority to order any person causing a public nuisance to abate the public nuisance. In addition, the department or any Commonwealth agency which undertakes to abate a public nuisance may recover the costs of abatement in an action in equity brought before any court of competent jurisdiction. Whenever such nuisance shall be maintained or continued contrary to this act or such orders, regulations or permits the same may be abatable in the manner provided by this act. Any person who causes such public nuisance shall be liable for the cost of abatement.

35 P.S. § 6021.1304. Likewise, the Commonwealth (by the Attorney General, General Counsel, any district attorney, or municipality solicitor) may bring an action to enforce the act. 35 P.S. § 6021.1305(a).

35 P.S. § 6021.1305(c) is the section which Appellants claim provides for private causes of action. It reads as follows:

(c) Private actions. — Except as provided in subsection (d) [relating to notice to Department of Environmental Resources] any person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this act or any rule, regulation, order or permit issued pursuant to this act by any owner, operator, landowner or occupier alleged to be in violation of any provision of this act or any rule, regulation, order or permit issued pursuant to this act. Except where 42 Pa.C.S. (relating to judiciary and judicial procedure) requires otherwise, the courts of common pleas shall have jurisdiction of such actions, and venue in such actions shall be as set forth in the Rules of Civil Procedure concerning civil actions in assumpsit. No such action may be commenced if the department has commenced and is diligently prosecuting a civil action in a court of the United States or of the Commonwealth or is in litigation before the Environmental Hearing Board to require the alleged violator to comply with this act or any rule, regulation, order or permit issued pursuant to this act, but, in any such action in a court of the United States or of the Commonwealth, any person having or representing an interest which is or may be adversely affected may intervene as a matter of right without posting bond.

35 P.S. § 6021.1305(c) (emphasis added). Finally, § 6021.-1305(f) reads in pertinent part as follows:

(f) Fees and costs. — The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

When asked to construe a statute, we are guided by the principles of statutory construction and legislative intent as follows:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921. We are also guided by certain presumptions in ascertaining legislative intent:

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
(4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.
(5) That the General Assembly intends to favor the public interest as against any private interest.

1 Pa.C.S. § 1922.

In reviewing a summary judgment order, our standard of review is as follows:

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered only 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 judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. The court’s responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless the case is free from doubt.

Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983) (citations omitted).

With these principles in mind, we turn to the language of the STSPA. The act provides that owners and operators of storage tanks must comply with the act in their use of those tanks. They must demonstrate financial responsibility for releases from those tanks. In doing so, they must demonstrate their ability to pay for costs of abatement, costs of litigation, and damages for personal injury and/or property damage. The act provides that the Commonwealth, through various persons, may bring an action in court to enforce the act and recover the costs of doing so. Likewise, when the Commonwealth has not brought suit, or pursued compliance with the act, a private person may bring an action to do so.

Appellees argue, in addition to their claim that there is no private action available under the act, that Appellants may not recover damages under the act, but can only sue to obtain compliance with the act. Appellees contend that compliance with the act means forcing corrective action to be taken, taking corrective action itself, and obtaining the costs of abatement. We agree with this interpretation of the act. Compliance with the act includes, but is not limited to, compelling owners and operators to: register their tanks, § 6021.503; pay annual registration fees, § 6021.501(a)(1); obtain permits and pay fees for those permits, § 6021.504; demonstrate financial responsibility for releases, § 6021.701; take corrective action after an order of DER, § 6021.1302; pay costs of abatement to DER or authorized third parties to do so, § 6021.1302(b); comply with regulations for use and operation of the tanks, § 6021.501; and not to cause a public nuisance, § 6021.1304.

Appellant claims as items of damages the following:

WHEREFORE, Plaintiff respectfully requests the Court to provide the following relief:
A. Award judgment in favor of Plaintiff and against Defendant under this cause of action averred by Plaintiff;
B. Award Plaintiff equitable and legal damages including, but not limited to, removal costs, cleanup costs, engineering fees, costs of determining the costs of assessing injury, source of contamination, costs for monitoring and testing, costs for treatment, costs of long-term plans to remediate, devaluation damages, interest and attorneys [sic] fees and costs, in an amount exceeding $10,000 or this Court’s jurisdictional mínimums; whichever amount is higher;
C. Award Plaintiff exemplary damages against Defendant in such an amount that it would act as a deterrent to Defendant and others from the future commission of like offenses and wrongs; and
D. Provide such other legal and equitable relief as this Court deems just and proper.

Appellants’ Petition to Amend Complaint Against Defendant, Atlantic Processing, Inc. t/a Lehigh Valley Farms at pp. 4-5, 7.

The DER may order a violator to take corrective action. Corrective action is defined as follows:

(1) Containing, assessing or investigating a release.
(2) Removing a release or any material affected by a release.
(3) Taking measures to prevent, mitigate, abate or remedy releases, pollution and potential for pollution, nuisances, and damages to the public health, safety or welfare, including, but not limited to, waters of the Commonwealth, including surface water and groundwater, public and private property, shorelines, beaches, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources.
(4) Taking actions to prevent, abate, mitigate or respond to a violation of this act that threatens public health or the environment.
(5) Temporarily or permanently relocating residents, providing alternative water supplies or undertaking an exposure assessment.
(6) Does not include the cost of routine inspections, routine investigations and permit activities not associated with a release.

35 Pa.S. § 6021.103. Compliance with the act necessarily includes taking corrective action. Corrective action is a measure which DER may order a violator to take, the costs of which the violator must bear. Therefore we hold that the measures and recoveries available to DER are equally available in a private action.

Because we find that the STSPA does provide for a private cause of action to compel compliance with the act, the trial court erred in granting partial summary judgment by striking the claim of Appellants for recovery under the act. Appellees were not entitled to partial summary judgment as a matter of law.

Next, we address whether Appellants are entitled to use the statutory presumption created in the STSPA. The pertinent section reads as follows:

(a) General rule. — Except as provided in subsection (b) [relating to defenses], it shall be presumed as a rebuttable presumption of law in civil and administrative proceedings that a person who owns or operates an aboveground or underground storage tank shall be liable, without proof of fault, negligence or causation, for all damages, contamination or pollution within 2,500 feet of the perimeter of the site of a storage tank containing or which contained a regulated substance of the type which caused the damage, contamination or pollution. Such presumption may be overcome by clear and convincing evidence that the person so charged did not contribute to the damage, contamination or pollution.

35 P.S. § 6021.1311(a). Appellees and the trial court argue that the legislature did not intend to permit private persons to use this presumption, but rather, the presumption is available only to the DER.

We agree that the language of this particular section does not specifically authorize the use of the presumption to be used in private actions. We find, however, that an action authorized by § 6021.1305(c), by a private person, necessarily involves a civil proceeding. Similarly, § 6021.1311 above explains how courts should evaluate the evidence presented in such a civil proceeding. We find that because an action by a private person is no different than one brought by the Commonwealth under the act, the presumption is equally available in a private action. Appellees and the trial court cite Fleck v. Timmons, 374 Pa.Super. 417, 543 A.2d 148 (1988), in support of the position that the presumption should not be applied to a private cause of action. We find that Fleck is clearly distinguishable.

In Fleck, we were called upon to construe provisions of the Solid Waste Management Act (SWMA), 35 P.S. § 6018.101 et seq. Specifically, the court relied upon § 6018.611 in support of its decision. Initially, we note that the SWMA, like the CSL, does not provide for a private cause of action. Therefore, private persons may only intervene under the SWMA in actions brought by the DER. Because there is no underlying right to bring a private action, we held that no presumption would be available for actions involving the SWMA. Although the language in SWMA is quite similar to the language in § 6021.1311 of STSPA, we find that Fleck is distinguishable. Appellants may use the statutory presumption as provided in § 6021.1311.

Finally, we address whether Appellants are entitled to use proof of a violation of the STSPA as evidence of negligence per se. The theory of negligence per se has been defined as follows:

Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.

Black’s Law Dictionary, 5th Ed, 1979 (emphasis added). The Restatement (Second) of Torts has addressed this in § 286 as follows:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.

Restatement (Second) of Torts § 286 (1965). Conversely, Appellees and the trial court rely on Restatement (Second) of Torts § 288 in support of their position that a violation of the STSPA does not constitute evidence of negligence per se. It reads as follows:

The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively
(a) to protect the interests of the state or any subdivision of it as such, or
(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or
(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or
(d) to protect a class of persons other than the one whose interests are invaded, or
(e) to protect another interest than the one invaded, or
(f) to protect against other harm than that which has resulted, or
(g) to protect against any other hazards than that from which the harm has resulted.

Restatement (Second) of Torts § 288 (1965). Section 6021.-1304 of the STSPA reads in part:

A violation of this act or of any order or regulation adopted by the department or of permits issued by the department shall constitute a public nuisance.

35 P.S. § 6021.1304.

Section 6021.1304 clearly establishes violations of the STSPA as public nuisances thereby prescribing the standard of conduct through a legislative enactment. We find that because private actions are authorized under the act, the STSPA contemplated the protection of the individual, as well as the public at large. The statute declares that storage tank releases are a threat to public health and safety. 35 P.S. § 6021.102(b). In addition to permitting the Commonwealth to commence suit to abate the public nuisance created by a violation, the legislature recognized the need to protect individuals harmed by the releases and, therefore, provided for their private actions.

Because the STSPA differs from the CSL and SWMA, as we have discussed previously, cases interpreting those other acts are not binding on our determination. The legislature clearly intended to treat storage tank releases in a different manner than the harms caused by these other acts. We find that Restatement (Second) of Torts § 286 applies in these circumstances, and, therefore, find that a violation of the STSPA can serve as evidence in a claim of negligence per se.

Because we find that the trial court erred in granting the partial summary judgments, by striking the eighth cause of action in Appellants’ complaint, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . 1989, July 6, P.L. 169, No. 32, § 101, effective in 30 days.

      . We note that Pa.R.A.P. 341, 42 Pa.C.S. was amended effective July 6, 1992. This amendment redefined the meaning of a final appealable order. Our present action was commenced prior to the effective date of this amendment and is therefore not governed by it.

      . We note that Appellees and the trial court rely on judicial interpretation of the Clean Streams Law (CSL), 35 P.S. § 691.1 et seq., in support of their position that a private cause of action does not exist under the STSPA.
      We find that reliance on another statute is only warranted when the plain language of the statute in question is ambiguous. Because we find that the STSPA clearly provides for a private cause of action, and is therefore not ambiguous, it was improper for the court to look to another statute in ascertaining the legislature's intent.
      Even were we to find that the language of the STSPA was ambiguous, the use of the CSL would yield the same result. The trial court considered the CSL to contain very similar language to the STSPA, and Appellees point to the following language:
      (c) Except as provided in subsection (e), any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this act or any rule, regulation, order or permit issued pursuant to this act against the department where there is alleged a failure of the department to perform any act which is not discretionary with the department or against any other person alleged to be in violation of any provision of this act or any rule, regulation, order or permit issued pursuant to this act.
      35 P.S. § 691.601(c) (emphasis added). Clearly, the language quoted above differs from the language of the STSPA because it provides for a private action against DER, but does not mention an action against the alleged violator(s). We find, therefore, the CSL to be clearly distinguishable from our present case and would not find that it controls our case even had we found the STSPA language to be ambiguous.

      . The trial court based its decision on this issue primarily on its earlier finding that the STSPA did not provide a private cause of action. As we have stated previously, this was error. Therefore, the trial court's analysis of this fourth issue is flawed because it is based on an improper premise.


author: CIRILLO, Judge.

text:
    635 A.2d 151
    Albert F. CAFAZZO and Tammy J. Cafazzo, His Wife, Appellants, v. CENTRAL MEDICAL HEALTH SERVICES, INC., a corporation; Central Medical Pavillion, Inc., a corporation; and Norman Stern, D.M.D.; Hospital Association of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1993.
    Filed Oct. 27, 1993.
    Reargument Denied Jan. 6, 1994.

      Robert W. Deer, Pittsburgh, for appellants.
    Stella L. Smetanka, Pittsburgh, for Stern, appellee.
    Louis C. Long, Pittsburgh, for Cent. Medical, appellee.
    Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County. We affirm.

The issue presented is whether, as a result of implantation of a defective prosthetic, liability should be extended to a hospital or a doctor based on a theory of product liability under Section 402A of the Restatement (Second) of Torts.

Appellants Albert F. Cafazzo and Tammy J. Cafazzo, husband and wife, initiated this lawsuit against appellees Central Medical Health Services, Inc., Central Medical Pavilion, Inc., [hospital] and Norman Stern, D.M.D., after Dr. Stern implanted into Mr. Cafazzo’s jaw a prosthetic device known as the Vitek Proplast TMJ prosthesis. In their complaint, Mr. and Mr. Cafazzo alleged that the hospital and Dr. Stern “provided, sold or otherwise placed into the stream of commerce products manufactured by Vitek, Inc., known as Proplast TMJ implants.” Mr. Cafazzo alleged that the product was defectively designed, not safe for its intended use, and lacked any warnings necessary to make it safe for its intended use. Mr. Cafazzo further alleged that as a result of the implant he suffered the following injuries: erosion of the mandibular condyle; fragmentation of dense fibrous connective tissue; chronic inflammation; generation of numerous foreign body type giant cells containing polarizing particles; infection; and pain, stress and anxiety. As a result of these medical conditions, Mr. Cafazzo averred that he was required to undergo additional surgery for removal of the implant and reconstruction of his jaw. In addition to the product liability action, Mrs. Cafazzo alleged a claim for loss of consortium.

The hospital and Dr. Stern filed preliminary objections in the nature of a demurrer. Following argument before the Honorable Eugene Strassburger, the trial court issued an order granting both the hospital’s and Dr. Stern’s preliminary objections and dismissing the Cafazzos’ complaint. This appeal followed.

Mr. and Mrs. Cafazzo raise the following issue: whether a physician or hospital who regularly provides, sells and charges for prosthetic implants can be liable under Restatement of Torts (Second) § 402A for selling a defective product when the implant is defective and causes damage to a patient?

When reviewing an order granting preliminary objections in the nature of a demurrer, we apply the same standard as the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 633, 487 A.2d 814, 815 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 191, 500 A.2d 470, 472. In reviewing preliminary objections, only facts that are well pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts, and preliminary objections will be sustained only if they are clear and free from doubt. Ohio Casualty Group Insurance Company v. Argonaut Insurance Company, 92 Pa. Cmwlth. 560, 500 A.2d 191 (1985). Preliminary objections will be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Company, 457 Pa. 220, 322 A.2d 353 (1974).

Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. See Pa.R.C.P. 1019; 4 Standard Pennsylvania Practice § 21:32; see also Pike County Hotels Corporation v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978) (at a minimum, the pleader must set forth facts upon which his cause of action is based).

Section 402A of the Restatement (Second) of Torts provides in relevant part:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts. Comment f to section 402A provides that the rule “applies to any manufacturer of such a product [and] to any wholesale or retail dealer or distributor----” Restatement (Second) of Torts, Comment f. See Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 210, 584 A.2d 1383, 1384 (1991); see also Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (adopting section 402A as the law of Pennsylvania).

A. Hospital Liability

The Cafazzos argue that the theory of “corporate liability” or “corporate negligence,” adopted in Thompson v. The Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) affords a basis for extending 402A liability to hospitals. In Thompson, the Pennsylvania Supreme Court embraced as a theory of hospital liability

the doctrine of corporate negligence or corporate liability under which the hospital is liable if it fails to uphold the proper standard of care owed the patient.... It is important to note that for a hospital to be charged with negligence, it is necessary to show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm.

Id. at 340, 591 A.2d at 708. This argument, however, provides no logical basis to extend strict product liability principles to a hospital; the Thompson court was presented with a question negligence.

In Coyle, supra, the Pennsylvania Supreme Court was presented with the question of whether a pharmacy should be subject to liability as a supplier in accordance with principles of strict liability found in section 402A. The Court began its analysis by considering whether extending liability would advance the purposes of section 402A. Quoting comment c to section 402A, the Court noted the following as the rationale supporting the rule of strict product liability:

the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; [ ] the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; [ ] public policy demands that the burden of accidental injuries caused by products intended for consumption be placed on those who market them, and be treated as a cost of production against which liability insurance can be obtained; and [ ] the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

(Emphasis added). Citing to a previous case, Francioni v. Gibsonia Trucking Company, 472 Pa. 362, 372 A.2d 736 (1977), which held that section 402A applied equally to lessors and sellers, the Court identified four “pertinent factors:” (1) supplier liability makes a member of the marketing chain available to the injured plaintiff for redress; (2) strict liability provides an incentive to safety; (3) a supplier is in a better position to prevent the circulation of defective products; and (4) the supplier can distribute the cost of compensating for injuries resulting from defects by charging for it in its business. Coyle, 526 Pa. at 216, 584 A.2d at 1387, citing Francioni, 472 Pa. at 368-69, 372 A.2d at 739.

Consideration of these factors weighs against extension of 402A liability to hospitals or physicians. A hospital is not a purveyor of products or goods; it is a provider of services, an intermediary in the distribution chain of a product such as the implant device in this case. The use of the implant device was incidental to the hospital’s primary function of providing medical services. Coyle, supra; see also Podrat v. Codman-Shurtleff, Inc., 384 Pa.Super. 404, 558 A.2d 895 (1989) (hospital was not liable to patient under theory of strict liability for injury which resulted when medical instrument broke during surgery, even if a charge was made for the use of the instrument as the hospital was not in the business of selling the instrument and its use was only incidental to the hospital’s primary function of providing medical services).

Holding physicians and hospitals hable would do little in the way of providing an incentive to safety. The safety of the product depends not on the judgment of the physician or the hospital administration, but on the judgment of those connected to the research, development, manufacture, marketing and sale of the product. Further, as to the circulation of defective products, a hospital not involved in the development or manufacture of the product is in no better position to prevent circulation of a defective product. This necessarily follows from the previous consideration.

Distribution of cost and availability of redress for a plaintiff, as the only considerations in favor of extending liability, would, as stated in Coyle, “result in absolute liability rather than strict liability.” 526 Pa. at 216, 584 A.2d at 1387. Relying solely on cost factors creates liability without a logical basis and confines the focus to a search for a deep pocket.

B. Physician Liability

Physicians, like hospitals, are providers of health care services. The physician’s expertise lies in the diagnosis, treatment and cure of illness, not in the research or development of prosthetics or devices used to aid medical diagnosis or treatment. A physician is not in the business of selling products, but rather is in the profession of providing medical services. Products such as the prosthetic device in this case are supplied and utilized only as needed to deliver the professional medical service. They are incidental, or integral, to a physician’s service, but they are not the focus of the physician’s delivery of health care.

The Commonwealth Court, in Hannis v. Ashland State General Hospital, 123 Pa.Cmwlth. 390, 554 A.2d 574 (1989), rejected an argument that the distinction between sale of products and services for purposes of strict liability is merely technical. There, the deceased patient’s estate filed an action against physicians for failure to diagnose under a strict liability theory. The appellants essentially argued that the physicians’ care was a “sale” for purposes of strict liability and that the sale/service dichotomy was “merely technical.” Id. at 398, 554 A.2d at 578. The court, affirming an order sustaining preliminary objections, stated: “The courts of Pennsylvania have never extended strict liability to the services provided by a physician, and we are not willing to do so in this case.” Id. at 398-99, 554 A.2d at 578, citing Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). The court, though not presented with the question of a prosthetic implant or other medical device, acknowledged the sales/services distinction in the law of the Commonwealth.

Although no Pennsylvania appellate court has directly addressed the issue of physician strict liability with respect to a defective implant, other jurisdictions have refused to extend strict liability to a health care provider in similar circumstances on the grounds that the implantation or use of a medical device is incidental to the provision of services. See, e.g., Betro v. GAC International, Inc., 158 A.D.2d 498, 551 N.Y.S.2d 72 (1991) (orthodontist’s prescription of a night brace did not constitute “sale” of a device; prescription was incidental to medical treatment); Goldfarb v. Teitelbaum, 149 A.D.2d 566, 540 N.Y.S.2d 263 (1989) (insertion of an alleged defective prosthetic device was a procedure incidental to medical treatment and did not constitute a “sale”); Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381 (1971) (court refused to extend the doctrine of strict liability to physician for prescribing a drug which caused untoward effects in the patient); Barbee v. Rogers, 425 S.W.2d 342 (Tex.1968) (optometrists who had prescribed, fit and sold contact lenses were not liable on the theory of strict liability in tort); Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539 (1967) (court refused to extend strict liability principles to a dentist for personal injuries caused to a patient when a defective needle broke in the patient’s mouth; the court found that the dentist had not engaged in the “sale” of a product).

Physicians are not infallible beings; they are a class of men and women confined by an inexact science. Without a claim of negligence or intentional wrongdoing, we are reluctant to extend the principle of strict liability to those engaged in the art of healing, or to those institutions providing a forum for that art. Hospitals and physicians, unlike manufacturers, are not capable of effecting risk distribution. Thus, in accordance with the rationale behind 402A liability, we decline to find the physician or hospital in this case were “sellers” under 402A and thus decline to extend the rule of strict product liability to the hospital or physician in this case. Coyle, supra; see also Podrat v. Codman-Shurtleff, Inc., supra.

Order affirmed.

      . An amicus curiae brief has been filed by the Hospital Association of Pennsylvania (HAP) in support of the position that liability under Section 402(A) should not be extended to hospitals for an injury allegedly caused by a defective prosthetic implant. HAP is a statewide association of health care institutions representing 252 hospitals licensed in the Commonwealth. HAP views itself as "the Pennsylvania health care industry’s principal forum for developing public policy initiatives and for the exchange of ideas on the effective delivery of quality health care services.” Amicus Brief, p. 2.


author: WIEAND, Judge.

text:
    635 A.2d 155
    Leroy BARNUM, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Dec. 16, 1993.

      Joel M. Lieberman, Philadelphia, for appellant.
    Louis E. Bricklin and Moira C. Duggan, Philadelphia, for State Farm, appellee.
    Jennifer L. Abram, Media, for Ins. Federation, amicus curiae.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge.

On July 10, 1991, Leroy Barnum was operating a vehicle insured by State Farm Mutual Automobile Insurance Company (State Farm) when he was involved in an accident causing injuries to his person. Barnum received medical treatment for his injuries and thereafter made a claim against State Farm for first party benefits under the Motor Vehicle Financial Responsibility Law. State Farm questioned some of Barnum’s medical bills and submitted them to a Peer Review Organization for evaluation pursuant to 75 Pa.C.S. § 1797(b). The PRO determined that certain medical treatment was unnecessary. State Farm then refused to pay the unnecessary charges.

Without seeking a reconsideration of the PRO determination, Barnum filed a civil action against State Farm in which he sought to recover his medical bills, plus interest, counsel fees and damages allowed by 42 Pa.C.S. § 8371. State Farm filed preliminary objections in the nature of a demurrer in which it contended that (1) Barnum had failed to exhaust his statutory remedy by failing to request reconsideration by the PRO, and (2) the provisions of 42 Pa.C.S. § 8371 were inapplicable to a claim for first party benefits under the Motor Vehicle Financial Responsibility Law. The trial court agreed and dismissed the complaint. Barnum appealed.

The Motor Vehicle Financial Responsibility Law, according to recent amendment, permits insurers to utilize PROs to evaluate the utility and medical necessity of medical treatment provided to a person injured in a motor vehicle accident. See generally: Harcourt v. General Accident Ins. Co., 419 Pa.Super. 155, 160 n. 2, 615 A.2d 71, 74 n. 2 (1992), citing 21 Pa.Bull. 5601 (Nov. 1991). The Peer Review Process is set forth at 75 Pa.C.S. § 1797(b). Subparagraph (b)(2) thereof provides for reconsideration of a PRO determination as follows:

(2) PRO reconsideration. — An insurer, provider or insured may request a reconsideration by the PRO of the PRO’s initial determination. Such a request for reconsideration must be made within 30 days of the PRO’s initial determination. If reconsideration is requested for the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include, an individual in the same specialty as the individual subject to review.

In Terminate v. Pennsylvania National Ins. Co:, 422 Pa.Super. 92, 618 A.2d 1032 (1993), allocatur granted, — Pa. -, 631 A.2d 1010 (1993), the Superior Court held that this provision was mandatory and that the peer review procedure, once started, had to be exhausted before an action at law could be commenced in the courts. With respect to appellant’s argument that the word “may” was permissive and did not require a prior petition for reconsideration, the Court said:

We find the appellant’s argument unpersuasive for several reasons. The appellant, first of all, is misguided if it believes that the word “may” is used to indicate that a party has a choice of either requesting reconsideration or appealing directly to a court of law. To the contrary, the use of the word “may” indicates a party has a choice between requesting reconsideration of the initial determination or accepting the initial determination as binding. “It is well settled that where the legislature provides a [statutory] remedy without preserving the parallel right to resort directly to the courts, that remedy is exclusive and must be strictly pursued.” Concerned Taxpay. v. Beaver Cty. Bd. of Assess., 75 Pa.Cmwlth. 443, 446, 462 A.2d 347, 349 (1983); accord Lashe v. Northern York County School District, 52 Pa.Cmwlth. 541, 546, 417 A.2d 260, 263 (1980). In such circumstances, we have interpreted words such as “may appeal” to indicate an aggrieved party must exhaust the statutorily defined remedy before proceeding to court. Concerned Taxpay., supra, 75 Pa.Cmwlth. at 443, 462 A.2d at 347 (words “may appeal” mean that taxpayer must pursue appeal before Taxpayer Board of Assessment). Accordingly, the statute does not indicate that a party in the Peer Review process can resort directly to the courts, but must either appeal within the Peer Review process or accept the PRO’s initial determination as binding.

Id. 422 Pa.Super. at 98-99, 618 A.2d at 1035 (footnote omitted).

The peer review process provides a strong incentive for insurance carriers to route disputed claims through this alternate dispute resolution process. Where the insurer denies a claim without first obtaining a PRO evaluation, the claimant may immediately commence a court action. If the court finds in favor of the claimant, the insurer becomes liable, in addition to the amount of the claim, for counsel fees, costs, and interest at the rate of 12%. Moreover, if the court finds that the insurer acted wantonly in denying a claim, treble damages may be awarded. Conversely, if the insurer uses the peer review process, its potential liability is limited to the amount of the claim plus interest. This feature of the law caused the Terminato Court to observe:

[I]t appears the statute is structured to push the insurer to submit claims it considers dubious into the Peer Review process. We believe the statutory design evidences an intention to make the Peer Review process the primary system for initially evaluating challenged insurance automobile policy medical claims. To accept the appellant’s argument, we would have to provide insured individuals the unilateral right to circumvent the Peer Review process by allowing them to proceed at their inclination in a court of law. The statute does not lend itself to such an interpretation.

Id. at 102, 618 A.2d at 1037 (footnote omitted).

Subsection (b)(2) provides that a request for reconsideration by the PRO may be made within 30 days of the PRO’s initial determination. Where the legislature has provided a statutory remedy without preserving the parallel right of direct and immediate access to the courts, that remedy is exclusive and must be exhausted. Under the statutory procedure, an immediate resort to the courts is permissible only where the insurer denies a claim without first obtaining a PRO evaluation. Otherwise, an insured cannot proceed in the courts until reconsideration of an unfavorable PRO evaluation has been sought. To hold otherwise would be to defeat the purpose of and the benefits to be derived from the PRO procedure established by the legislature.

Our construction of the statute is supported by administrative regulation appearing at 31 Pa.Code § 69.52(m). It is there provided that “[u]pon determination of a reconsideration by a PRO, an insurer, provider or insured may appeal the determination to the courts.” A court should not disregard or overturn an administrative agency’s construction of a statute unless it is clearly erroneous. Slovak-American Citizens Club of Oakview v. Pennsylvania Liquor Control Board, 120 Pa.Commw. 528, 532, 549 A.2d 251, 253 (1988). This is because administrative regulations may often serve to clarify an arguable vagueness existing in the statute. Pennsylvania Medical Society v. Foster, 137 Pa.Commw. 192, 199, 585 A.2d 595, 598 (1991). Thus, in this case, the regulations confirm the only logical interpretation to be given the statute. They confirm this Court’s decision to follow Terminato.

Appellant argues further that the trial court erred when it dismissed his claim for punitive damages, based on alleged bad faith conduct by the insurer, pursuant to 42 Pa.C.S. § 8371. This statutory provision was a part of the same amendatory legislation which produced 75 Pa.C.S. § 1797. It provides as follows:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

By its terms, the provision has general application to actions on insurance policies.

The provisions of 75 Pa.C.S. § 1797, however, have specific application to claims for first party benefits under the Motor Vehicle Financial Responsibility Law. It is these claims which are subject to the PRO procedure. In such cases, if it is determined by a PRO or a court that medical treatment or rehabilitative services or merchandise for which the claim is made were medically necessary, the insurer can be made to pay interest at the rate of twelve (12%) percent and/or attorney fees as set forth in 75 Pa.C.S. § 1797(b)(5) and (6). If the insurer’s conduct was wanton, moreover, it can be made to pay treble damages. These remedies clearly are at variance with and in conflict with the general remedies set forth in 42 Pa.C.S. § 8371.

When a general statutory provision conflicts with a specific provision and the two are applicable to the same matter, the legislature has provided as follows at 1 Pa.C.S. § 1933.

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

The several sections of the statute here being examined cannot be reconciled. The damages specified by the legislature in the event of wanton or bad faith conduct by an insurer are different, and the rate of interest to be awarded is also different. The provisions of 75 Pa.C.S. § 1797 are narrowly limited to those situations in which a disputed claim is to be submitted to the PRO procedure. With respect to such claims, the procedure to be followed is set forth with specificity, and the remedy, whether the procedure is followed or not, is set forth with equal specificity. If the procedure is followed by an insurer, its liability cannot be greater than as therein set forth. If it follows the PRO procedure, it cannot be subjected to damages for bad faith.

Because the two provisions were enacted at the same time and cannot be reconciled, the specific provisions of 75 Pa.C.S. § 1797 must be deemed an exception to the general remedy for bad faith contained in 42 Pa.C.S. § 8371. The provisions of 75 Pa.C.S. § 1797 are to be applied to claims for first party benefits under the Motor Vehicle Financial Responsibility Law. Accord: Danley v. State Farm Mutual Automobile Ins. Co., 808 F.Supp. 399, 401 (M.D.Pa.1992) (provisions of 75 Pa.C.S. § 1797 are impossible to reconcile with 42 Pa.C.S. § 8371, and courts have properly held that § 1797 provides exclusive remedy in auto insurance medical claim area.); Gavaghan v. Replacement Rent-A-Car, Inc., 811 F.Supp. 1077, 1081 (E.D.Pa.1992) (42 Pa.C.S. § 8371 can apply to claims brought pursuant to MVFRL as long as such claims do not involve first party benefits.); Elliott v. State Farm Mutual Automobile Ins. Co., 786 F.Supp. 487, 492-493 (E.D.Pa.1992).

For all of the foregoing reasons, we hold that this case was correctly decided by the trial court.

Order affirmed.

      . Although the trial court granted leave to file an amended complaint, it is readily apparent that appellant cannot file a pleading which will obviate the objections which State Farm has raised. The trial court's order, therefore, is final and appealable; it has put plaintiff out of court. See: Fizz v. Kurtz, Dowd & Nuss, Inc., 360 Pa.Super. 151, 153 n. 1, 519 A.2d 1037, 1038 n. 1 (1987); Urban v. Urban, 332 Pa.Super. 373, 378, 481 A.2d 662, 664-665 (1984); Freeze v. Donegal Mutual Ins. Co., 301 Pa.Super. 344, 349-350, 447 A.2d 999, 1002 (1982), aff’d, 504 Pa. 218, 470 A.2d 958 (1983).

      . See: 75 Pa.C.S. § 1797.

      . In view of the PRO decision affirming State Farm’s partial denial of appellant’s claim, it is difficult at this point to perceive bad faith in State Farm’s conduct.

      . Act of February 7, 1990, P.L. 11, No. 6, effective April 15, 1990.


author: FORD ELLIOTT, Judge:

text:
    635 A.2d 159
    Kenneth GERMAN, Appellant, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Carl E. & Marjorie SCHULTZ, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc., A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. John R. and Grace KENNEDY, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Richard & Louise DELGOTT, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fibreglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Frank & Doris SCOLA, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Standard Insulation Inc., Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Allan SHANK, Jr., Appellant, AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Nicolet Industries, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Albert C. & Patricia STAEHLE, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Standard Insulation, Inc., Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Dennis and Marie O’DONNELL, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Standard Insulation, Inc., Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation, Owens-Corning Fiberglas Corporation. James & Ann WALKER, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation, Combustion Engineering, Owens-Corning Fiberglas Corporation. Frank and Helen ENT, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Anthony BORSKI, Appellant, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. William and Joan MANGOLD, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Standard Insulation, Inc., Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Lucille ROTHERMEL, Executrix of the Estate of John Rothermel, Dec’d, and in Her Own Right, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. William & Grace ROTHERMEL, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Nicolet Industries, Inc., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Standard Insulation, Inc., Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Edward G. LEX, Jr., Appellant, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Francis G. HIGGINS, Jr., Appellant, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Richard and Jeanne ROLLISON, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, Celotex Corporation, Certainteed Corporation, Combustion Engineering, EaglePicher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Jeanne & Richard ROLLISON, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Charles & Patricia FITZGERALD, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Thomas M. & Antoinette PFROMMER, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation. Maryann FITZGERALD, Executrix for the Estate of James Fitzgerald, Dec’d, and in Her Own Right, Appellants, v. AC & S, INC., Anchor Packing Company, Armstrong World Industries, Inc., Carey-Canada, Inc., Celotex Corporation, Certainteed Corporation, Combustion Engineering, Eagle-Picher Industries, Inc., Fibreboard Corporation, GAF Corporation, Garlock Industries, Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Pittsburgh Corning Corporation, H.K. Porter Company, Inc., T & N PLC. F/K/A Turner-Newall, Ltd., Raymark Industries, Inc., Rock Wool Manufacturing Company, Southern Textile Company, U.S. Mineral Products, John Crane Houdaille, Inc. A/K/A Crane Packing Company, Amchem Products, Inc., Foster-Wheeler Corporation.
    Superior Court of Pennsylvania.
    Argued May 25, 1998.
    Filed Dec. 16, 1993.

      R. Bruce McElhone, Maryland, for appellants.
    Joseph W. McGuire, Philadelphia, for Owens-Corning Fiberglass Corp., appellee.
    Patricia Nigro, Philadelphia, for Owens-Illinois, Inc., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

These consolidated appeals are from the October 16, 1991 orders of the Court of Common Pleas of Philadelphia County, dismissing eleven of the cases to be re-filed in New Jersey and transferring the other ten cases to one of three counties: Delaware, Montgomery, or Chester. We affirm in part and vacate in part.

The individual factual scenarios underlying each of the twenty-one cases will be summarized, as needed, during an analysis of the legal issues presented. However, by way of introduction, some general background information may prove beneficial. All twenty-one appellants were plaintiffs in the underlying asbestos actions. All were construction tradesmen and members of trade union locals headquartered in Philadelphia. Through their unions, the various appellants were hired to work at construction sites in and around Philadelphia County. Through such work, appellants were all exposed to asbestos and asbestos-containing products. As a result of this exposure, appellants filed suits seeking recovery for the resultant injuries and/or deaths.

Faced with an extremely congested docket of asbestos cases, the Philadelphia County Court of Common Pleas announced, in May 1991, its desire to determine the status, for venue purposes, of such cases filed between 1986 and 1991. With that purpose in mind, the trial court in August 1991 ordered appellants to submit information sheets summarizing ' their residences and locations of exposure to asbestos. The trial court reviewed these summaries in conjunction with an “omnibus motion” by appellees to dismiss cases for re-filing in other jurisdictions or to transfer cases to other counties, based upon forum non conveniens.

On October 16, 1991, the trial court issued four orders in response to the “omnibus motion.” The first order dismissed eleven of the actions so that they could be re-filed in New Jersey. The second order transferred seven of the cases to Delaware County. The third order transferred two of the cases to Montgomery County. The fourth order transferred one case to Chester County. Appellants filed petitions for reconsideration which were denied by the trial court. These timely appeals followed. The twenty-one cases have been consolidated for appellate review.

Appellants presently raise the following three issues for our consideration:

I. Did the Appellee satisfy the burden of proof on the record necessary to justify dismissal because: A. The transferee jurisdiction is an available alternative jurisdiction; and, B. Trial in the original jurisdiction when compared to the transferee jurisdiction would be: i.) oppressive and vexatious to the Appellees; or ii.) inappropriate because the litigation had insufficient contacts to the jurisdiction to justify its contribution to congestion in the courts of the forum or imposing jury duty on its citizens?
II. Did the Appellee clearly satisfy the burden of proof necessary to justify venue transfer on the record because: A. The transferee venue was equally competent with the original venue and it would have been proper to institute the cause of action there; and, B. The transferee venue was more convenient for both parties or the witnesses; and, C. Trial in the original jurisdiction when compared to the transferee jurisdiction would be: i.) oppressive and vexatious to the Appellees; or, ii.) inappropriate because the litigation had insufficient contacts to the venue to justify its contribution to congestion in the courts of the county or imposing jury duty on its citizens?
III. Was forum non conveniens in the jurisdictional or venue context, respectively, properly before the lower court?

The first issue raised by appellants concerns the trial court order dismissing eleven of the actions so they can be re-filed in New Jersey. The appellants affected by that order include: William and Grace Rothermel; Lucille Rothermel (Executrix of the Estate of John Rothermel); William and Joan Mangold; Edward G. Lex, Jr.; Francis G. Higgins; Richard and Jeanne Rollison; Jeanne and Richard Rollison; Maryann Fitzgerald (Executrix of the Estate of James Fitzgerald); Charles and Patricia Fitzgerald; Thomas and Antoinette Pfrommer; and Anthony Borski.

The common thread among these appellants, except Francis G. Higgins, is that they all currently reside in New Jersey. Mr. Higgins resides in Florida but was exposed to asbestos in both Philadelphia and New Jersey. The others, although residents of New Jersey, all spent parts of their careers working in Philadelphia. In some cases, the time spent working in Philadelphia was significantly greater than that spent working in New Jersey. For example, Mr. Rothermel worked a total of nearly thirteen years in Philadelphia and only three years in New Jersey. William Mangold worked nearly twelve years in Philadelphia and three years, seven months in New Jersey. Edward Lex worked for seven and one-half years in Philadelphia and a little over two years in New Jersey. The pattern is similar with the other appellants in this group. However, the trial court concluded that because these appellants were now residents of New Jersey and had worked some portion of their careers there, the cases filed in Philadelphia should be dismissed and re-filed in New Jersey.

Our standard of review in an appeal from an order granting a dismissal or transfer based upon forum non conveniens is abuse of discretion. See Plum v. Tampax, Inc., 402 Pa. 616, 168 A.2d 315 (1961). “[Ajbuse of discretion is shown by a record of misapplication of the law, or judgment that is manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill will.” Beatrice Foods, Co. v. Proctor & Schwartz, 309 Pa.Super. 351, 361, 455 A.2d 646, 651 (1982). Presently, we find that the trial court abused its discretion with respect to ordering the dismissal of these eleven actions to be re-filed in New Jersey.

Whether a suit should be dismissed for re-filing in another jurisdiction, under the doctrine of forum non conveniens, is dependant upon two factors.

[T]he two most important factors for the court to consider are (1) a plaintiffs choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff.

Page v. Ekbladh, 404 Pa.Super. 368, 372, 590 A.2d 1278, 1280 (1991), quoting Beatrice Foods at 359, 455 A.2d at 650 (emphasis added). In considering the second factor, our supreme court noted:

Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiffs cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant’s stipulation that he will not raise this defense in the second state.

Rini v. New York Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 373-74 (1968).

In the eleven cases involved in the dismissal order, all of them would be time barred by the applicable New Jersey statute of limitations. Furthermore, our review of the record reveals no stipulation by appellees that they will not raise a statute of limitations defense once the cases are re-filed in New Jersey. The trial court’s order does state that appellees have agreed to waive the statute of limitations defense. However, there is no stipulation to that effect which these appellants could present to a New Jersey court for enforcement. The trial court’s order, itself, has no binding effect on a New Jersey court. Thus, the fact that the trial court acknowledged in its order that the defense has been waived is not equivalent to a legally binding stipulation signed by appellees, which could be enforced by a New Jersey court. Accordingly, because the statute of limitations defense remains legally' viable as to these eleven appellants, we must conclude that it was an abuse of discretion for the trial court to dismiss their cases. Accordingly, we will vacate that order of the trial court.

Appellants’ remaining two issues concern the ten cases which were transferred to other counties in Pennsylvania. We shall consider the last issue first, as that concerns the procedure utilized by the trial court to transfer the cases. We must first determine the validity of the trial court’s procedural methods, before addressing the substance of the transfer orders.

Appellants’ last matter questions whether the issue of transferring venue was ever properly before the trial court in the first instance. Appellants contend that there were never any petitions filed by appellees and no depositions taken on factual issues, as required under Pa.R.C.P. 206-209. Our review of the record reveals that the trial court has adopted special procedural rules in considering the issue of venue transfer in asbestos cases. Instead of considering individual .petitions on each of thousands of asbestos cases, the court notifies the bar that it will entertain an omnibus motion on all cases filed during a certain year. In conjunction therewith, plaintiffs’ counsel are requested to fill out and file information forms providing the court with information as to work history and residency. On the day of argument, oral petitions are raised on the contested cases and argument is presented to the trial court. Although an unusual procedure, we find that it may be an essential one in Philadelphia County, where the court is faced with an enormous backlog of asbestos eases. A review of the transcript reveals that many cases are transferred by consent. In those cases that are contested, the trial court is presented with factual information through the information sheets and oral argument. On those occasions where there is still some uncertainty, the court will take the matter under advisement and request additional information from the parties. Thus, while the procedure does not precisely conform to the rules, the purpose of the rules is being served, and, in the long run, the litigants benefit by having the matters considered more expeditiously. Accordingly, we will not disturb what appears to be an efficient and fair procedure.

Having determined that the question of forum non conveniens was properly before the trial court, we now turn our attention to the substance of the trial court’s rulings on the remaining ten appellants. Seven of appellants’ cases were transferred to Delaware County, including: Allan Shank, Jr.; Albert C. and Patricia Staehle; Frank and Doris Scola; Frank and Helen Ent; Carl E. and Marjorie Schultz; John R. and Grace Kennedy; and Richard and Louise Delgott. Two of appellants’ cases were transferred to Montgomery County; they include: James and Ann Walker; and Kenneth German. Dennis and Marie O’Donnell’s case was transferred to Chester County.

All ten of these appellants currently reside in the county to which their case was transferred. However, at some point during their careers, all these appellants worked in Philadelphia. Some even lived in Philadelphia at one time. In deciding to transfer venue, the trial court looked at current residences and what percentage of time was spent working in Philadelphia. The trial court balanced private and public interest factors and decided to transfer jurisdiction to the current resident county of each appellant. We find there is no abuse of discretion on the part of the trial court with respect to these ten appellants.

Instantly, we note that a plaintiff should not be deprived of their choice of forum unless the defendant:

[cjlearly adduces facts that either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience or (2) make a trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems. A court must balance these private and public interest factors but unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.

Incollingo v. McCurran, 416 Pa.Super. 419, 423, 611 A.2d 287, 289 (1992), quoting Petty v. Suburban General Hospital, 363 Pa.Super. 277, 281, 525 A.2d 1230, 1232 (1987) (emphasis added).

Based upon the facts presented, it then falls upon the trial court to

consider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling [witnesses], and the cost of obtaining attendance of willing witnesses; possibility of view of the premises if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.... The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation ...

Petty, supra at 281-82, 525 A.2d at 1232 (emphasis added).

Presently, our review of the record and the trial court opinion lead us to conclude that the trial court committed no abuse of discretion when it decided to transfer the ten cases at issue.

As the record clearly indicates, the trial court considered the various elements affecting the private interests of the parties, including current residence, location of exposure, work history, witness location, and sources of proof. The trial court also considered the public interest factors, the most important of which was increasing court congestion created by the asbestos cases. The trial court weighed these various factors and determined that the public interest factors weighed heavily in favor of transferring these cases. We do not find such a decision to be an abuse of discretion. The Petty decision requires that a court consider public interest factors when evaluating a change of venue motion. With respect to the ten cases at issue, all the appellants are residents of the counties to which their cases were transferred. While these appellants did work, at some point, in Philadelphia County, they all worked part, if not most, of their careers outside Philadelphia County.

As noted by Judge Moss, in the area of asbestos litigation, consideration of the public interest factors very often benefit the private interests of the litigants. With respect to those litigants whose cases are transferred, their cases will surely be heard more quickly in the transferee county given the enormous backlog of cases existing in Philadelphia County. The transfers will also serve to expedite the cases of those litigants whose claims remain in Philadelphia County. Thus, the public interest concern of court congestion can be directly related to private interest concerns.

This correlation is even stronger in the setting of asbestos litigation. As discussed previously, the Philadelphia courts are confronted with an almost overwhelming docket because of the explosion of asbestos litigation over the past decade. In fact, Philadelphia County has one of the largest asbestos dockets in the country. See National Center for State Courts’ Statistics, U.S. Commerce Department, 1990. The judges of the Court of Common Pleas of Philadelphia County, most notably Judge Moss, are struggling with this congestion and achieving unprecedented success. The omnibus motion procedure utilized herein is one example of the creative case management techniques utilized by the court in a streamlined program. As the trial court notes, procedures which expedite the caseload are essential in that many litigants otherwise might suffer and die before their cases ever reach court as the disease often moves faster than the court calendar. Thus, by weighing the public interest concerns in mass tort litigation situations such as this, there is also a direct impact on private interest concerns: an impact which has the beneficial effect of allowing the claims of asbestos litigants to reach court and be heard as quickly as possible. Accordingly, we cannot find that the court abused its discretion when, after carefully weighing all relevant factors, it determined that the scales tipped in favor of transferring these ten cases.

In conclusion, because we find that the trial court has abused its discretion with respect to the New Jersey cases, we are compelled to vacate those orders and remand those cases to the trial court for further proceedings. Should all parties be in agreement that the “New Jersey” cases be dismissed and re-filed in New Jersey, we leave it to the parties to provide some record of such intention such that appellants will be protected from a statute of limitations defense in New Jersey.

With respect to the remaining ten cases, we find that the three orders transferring those cases were proper and therefore affirm those orders.

Accordingly, the orders are affirmed in part and vacated in part, and the cases are remanded for further proceedings consistent with this opinion.

      . These procedures are set out for counsel in the form, Complex Litigation Center Motions Procedures, and signed by Alex Bonavitacola, Administrative Judge, and Sandra Mazer Moss, Calendar Judge.