author: HESTER, Judge:

text:
    477 A.2d 508
    Peter FLAMINI, Appellant, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1983.
    Filed May 11, 1984.
    Petition for Allowance of Appeal Denied Aug. 13, 1984.

      John M. Kenney, Media, for appellant.
    Roger J. Harrington, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

This is an appeal from a Judgment and Order of the Court of Common Pleas, Delaware County, Pennsylvania, which modified an arbitration panel’s award to appellant based on a fleet vehicle policy of insurance issued by appellee, General Accident Fire and Life Assurance Corporation (hereinafter, General Accident) to appellant’s employer, Upper Darby Township. The issue before us is whether an employee can cumulate or “stack” the uninsured motorist coverage under his employer’s fleet vehicle insurance policy.

The facts are undisputed and are as follows. On May 11, 1978, appellant was employed as a police officer for Upper Darby Township, Delaware County, Pennsylvania. On this date, while on duty and seated in a police vehicle owned by the Township, appellant sustained bodily injuries when the vehicle in which he was seated was struck by a hit and run vehicle. At the time of the accident, appellee General Accident was the insurance carrier for the fleet of vehicles owned by Upper Darby Township and used by its police department.

The insurance policy in question is a single policy covering 175 vehicles. The policy provides uninsured motorist coverage with limits of liability of “fifteen thousand dollars each person/thirty thousand dollars each accident”. The limits of liability section provides:

III. LIMITS OF LIABILITY
Regardless of the number of (1) persons or organizations who are insureds under this policy, (2) persons who sustain bodily injury, (3) claims made or suits brought on account of bodily injury, or (4) highway vehicles to which this policy applies,
(a) The limit of liability stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting “each person”, the limit of liability stated in the declarations as applicable to “each accident” is the total limit of the company’s liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident.

Upper Darby Township paid a premium for this uninsured motorist coverage of $4.00 for each vehicle for an annual total of $760.00 for the fleet of 175 vehicles.

Pursuant to its interpretation of the policy, General Accident offered appellant the amount of $15,000.00. This amount reflected General Accident’s belief that this was the maximum benefit due under the uninsured motorist provision of its contract with Upper Darby Township. Appellant refused to accept this offer in full settlement of his claim, contending instead that he was entitled to cumulate or “stack” the uninsured motorist coverage of each of the 175 vehicles under the fleet policy. As a result of the impasse, appellant requested arbitration by the American Arbitration Association, pursuant to the following paragraph contained in the subject policy:

F. Arbitration.
If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration, which shall be conducted in accordance with the rules of the American Arbitration Association unless other means of conducting the arbitration are agreed to between the insured and the company, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this insurance.

On January 25, 1980, General Accident filed a Complaint in Equity in the Court of Common Pleas of Philadelphia County, seeking an injunction to stop the proposed arbitration. In its complaint, General Accident contended that the arbitration proceedings were unnecessary because its outstanding offer of $15,000.00 was the extent of its obligation under the policy and the maximum which the arbitrators could award under the circumstances. Appellant filed preliminary objections to the complaint raising the question of venue and citing the arbitration clause as the exclusive remedy for resolving the dispute. By an order of February 6, 1980, the Honorable Harry A. Takiff denied General Accident’s request for injunctive relief and ordered the parties to proceed “to arbitration of American Arbitration Association Case No. 1420001280J.”

General Accident did not file an appeal from Judge Tak-iff s order. Instead, General Accident filed another Complaint in Equity seeking a mandatory injunction that the arbitration of appellant’s claim proceed under the Arbitration Act of 1927 then in effect. Appellant filed an answer to General Accident’s complaint requesting that it be dismissed and alleging that the issues raised in it had been finally litigated before Judge Takiff. The lower court, Judge Doty, dismissed General Accident’s complaint and in its opinion explained that “this court will not undertake to assume control over a matter which was originally heard by another judge of this jurisdiction.” Although there was no extensive discussion, Judge Doty supported his decision by reference to the doctrine of res judicata and the policy against forum or judge shopping. However, no decision on the question whether the arbitration was to be governed by the rules of common law or by the Arbitration Act of 1927 was reached.

On September 17, 1980, a hearing was held before a three-member arbitration panel pursuant to the rules of the American Arbitration Association. On October 29, 1980, the arbitration panel awarded appellant $175,000.00, the total amount of appellant’s actual loss. The panel permitted appellant to “stack” the uninsured motorist coverage of $15,000.00 per person per accident available under the fleet policy and multiply that amount by the 175 vehicles owned by Upper Darby Township and covered under the policy, limited however, to appellant’s actual loss. Upon its consideration of appellant’s petition to confirm the award, the lower court modified the amount of the award to $15,000.00, since it found an error of law committed by the panel in permitting appellant to “stack” the uninsured motorist coverage of his employer’s fleet policy. This appeal followed.

Preliminarily, appellant contends that the lower court erred in finding the arbitration in question subject to the Arbitration Act of 1927, 5 P.S. § 161 et seq. Appellant argues that the award was rendered at common law with all its incidents of formality of award and narrow power of court review. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); Harwitz v. Adams, 406 Pa. 539, 178 A.2d 617 (1962).

The lower court ruled that the arbitration was governed by the Arbitration Act of 1927 based on § 16 of the Act which provides:

State and Municipal Contracts

The provisions of this act shall apply to any written contract to which the Commonwealth of Pennsylvania, or any agency or subdivision thereof, or any municipal corporation or political division of the Commonwealth shall be a party. (Emphasis added) 5 P.S. § 176.

Pursuant to subsection (d) of § 11 of the Act which permits the court to modify or correct an award found to be against the law, the lower court modified the arbitration award from $175,000.00 to $15,000.00 since it found the “stacking” of coverage in the circumstances presented to be against the law of Pennsylvania.

In construing § 16 of the Arbitration Act (5 P.S. § 176), our courts have consistently held that in contracts containing arbitration clauses to which the Commonwealth, its agencies, municipal corporations or political divisions are parties, the application of the Act is mandatory and nonwaivable. See Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975); John A. Robbins Co. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965); Acchione v. Commonwealth, 347 Pa. 562, 32 A.2d 764 (1943); Seaboard Surety Co. v. Commonwealth, 345 Pa. 147, 27 A.2d 27 (1942); Philadelphia Housing Authority v. Turner Construction Co., 343 Pa. 512, 23 A.2d 426 (1942); J.M. Davis Co. v. Shaler Township, 332 Pa. 134, 2 A.2d 708 (1938).

Appellant concedes that while private parties may contract for common law arbitration, the Commonwealth, its agencies, municipal corporations or political divisions may not do so. See Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., supra; John A. Robbins Co. v. Airportels, Inc., supra. However, appellant submits that the purpose of § 16 of the Arbitration Act of 1927 is to prevent the Commonwealth, its agencies, municipal corporations and political divisions from limiting their rights on appeal in matters affecting their important interests which first are submitted to arbitration for resolution. He urges Upper Darby Township has no interest in the outcome of the case since it is not a party to the litigation; consequently, the application of the Act in the circumstances of this case would not further the purported purpose of § 16. Appellant’s argument has a certain plausability to it but we are convinced that the Act applies in this case.

The insurance policy in question was entered into between General Accident and Upper Darby Township, a political division of the Commonwealth. The language of § 16 only requires Upper Darby Township to be a party to the contract in order for the Act of 1927 to apply. See Pennsylvania Turnpike Commission v. Sanders & Thomas, supra; John A. Robbins Co. v. Airportels, Inc., supra; Acchione v. Commonwealth, supra; Seaboard Surety Co. v. Commonwealth, supra; Philadelphia Housing Authori ty v. Turner Construction Co., supra; J.M. Davis Co. v. Shaler Township, supra. This fact alone is sufficient to convince us that the Act applies. However, there are further reasons.

Appellant, injured while occupying a Township police vehicle covered under the subject policy, derives his claim only from his status as a third party beneficiary of the uninsured motorist provision in the policy. Although appellant is a “person making claim” under the arbitration provision, he is not a party to the contract and has sacrificed nothing to secure his contract right. As such, appellant’s contract right in the policy is subject to any limitations imposed by law or inherent in the policy. See, Restatement (Second) Contracts § 309 comment a, c, § 313 (1981); See also Clayton v. National Electric Products Corporation, 421 Pa. 375, 219 A.2d 595 (1966); Rivers v. Delaware Valley Mutual Casualty Co., 196 Pa.Super. 475, 175 A.2d 87 (1961); Miller v. Travelers Insurance Company, 143 Pa.Super. 270, 17 A.2d 907 (1941).

Furthermore, language of the arbitration provision in the subject policy calling for arbitration to be conducted in accord with the rules of the American Arbitration Association and lacking specific reference to the Arbitration Act of 1927 has been found to mean that the arbitration was at common law in cases involving contracting private parties. See Runewicz v. Keystone Insurance Co., supra; Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965). The language in the arbitration provision in question in those cases also provided that the parties were to be bound by the award, which is inconsistent with the broad judicial review permitted under the Arbitration Act of 1927. Runewicz v. Keystone Insurance Co., supra; Wingate Construction Co. v. Schweizer Dipple, Inc., supra. On the other hand, our courts have consistently held that the imperative language of § 16 mandates its application when the Commonwealth, its agencies, municipal corporations or political divisions are parties to the contract, even though the subject arbitration provision contains language to the effect that the award is final and does not make reference to any statutory remedy. See Acchione v. Commonwealth, supra; Philadelphia Housing Authority v. Turner Construction Co., supra; Seaboard Surety Co. v. Commonwealth, supra; J.M. Davis Co. v. Shaler Township, supra.

While it is true that these cases involve the Commonwealth or one of its political divisions, as a party to both the litigation and to the contract containing the arbitration provision brought into question, § 16 only requires that the Commonwealth or its political divisions be a party to the contract. Moreover, if we assume as correct appellant’s construction of the purpose of § 16 i.e., to limit the Commonwealth and its political divisions from contracting away the right of broad judicial review in matters affecting their interests (for our own examination of the legislative history of the Act of 1927 fails to reveal such express purpose) we believe Upper Darby Township has an important interest in the outcome of the case even though it is not a party to the litigation.

Upper Darby Township paid a total premium of $760.00 for coverage of its 175 vehicles. The coverage on the fleet policy provides uninsured motorist coverage for each vehicle in the amount of “15 thousand per person, 30 thousand per accident.” “Stacking” of the coverage under appellant’s theory would in effect push the contractual limits of uninsured motorist insurance coverage up to the amounts of 2.6 million dollars per person/ 5.25 million dollars per accident. Such increased exposure to risk by General Accident could lead to greater expenditure of public monies by the Township, assuming, not unreasonably, that the increased exposure to risk would be passed onto the governmental unit in the form of greater insurance costs. It would be reasonable to find that the legislature intended to preserve a broad scope of judicial review for just the situation presented here.

Thus, we are constrained to conclude that under the Arbitration Act of 1927, a political division of the Commonwealth is not permitted to contract for common law arbitration. See, e.g., Pennsylvania Turnpike Commission v. Sanders & Thomas, supra. It may not do so indirectly, or for that matter inadvertently. We therefore hold that the lower court did not err in applying the Arbitration Act of 1927 since it had before it a public contract containing a provision to arbitrate.

The issue squarely before us is whether an employee who was injured while occupying a vehicle owned by his employer and who was insured under the employer’s fleet insurance policy may cumulate or “stack” the uninsured motorist coverage on each of the insured vehicles. The lower court ruled that appellant could not and therefore modified the initial award of $175,000.00 to $15,000.00.

The identical question was recently addressed by the Pennsylvania Supreme Court in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Therein, the decedent was killed while operating an automobile owned by his employer. The executrix of the decedent’s estate filed an action for uninsured motorist benefits against Utica Mutual Insurance Company (hereinafter Uti-ca), the motor vehicle insurer for the decedent’s employer. The fleet policy issued by Utica insured fifteen vehicles with limits of liability of $15,000.00 each person/$30,000.00 each accident. The executrix sought to cumulate, or “stack,” the uninsured motorist benefits under the multiple coverages. The lower court permitted cumulation of coverage under the fleet policy, and this Court affirmed. Utica Mutual Insurance Co. v. Contrisciane, 312 Pa.Super. 549, 459 A.2d 358 (1983).

The Pennsylvania Supreme Court reversed, holding that a person who is insured only because of his status as an occupant in a vehicle insured under a fleet policy may not stack coverages. Both the policy in Utica and in the case sub judice contained the standard provision approved for use by the Pennsylvania Insurance Commissioner in policies in Pennsylvania, which specifically provided the following regarding “Persons Insured” under the policy:

Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.
The insurance applies separately with respect to each insured, except with respect to the limits of the company’s liability.

The Supreme Court categorized the above classifications as “class one”, “class two”, and “class three” coverage.

In denying multiple coverage, that Court stated: decedent’s entitlement to coverage was predicated on his occupation of the vehicle at the time of the accident: a “class two” type of coverage. A claimant whose coverage is solely a result of membership in this class has not paid premiums, nor is he a specifically intended beneficiary of the policy. Thus, he has no recognizable contractual relationship with the insurer, there is no basis upon which he can reasonably expect multiple coverage, (footnote omitted)

Id., 312 Pa.Superior Ct. at 552, 459 A.2d at 361. The Supreme Court found no basis upon which to allow the decedent’s estate to stack the insurance limits applicable to the other vehicles. Recovery under the Utica policy was limited to the $15,000.00 coverage applicable to the vehicle being operated by the decedent at the time of the accident.

The Utica decision serves as binding precedent for the case at bar. Appellant did not pay premiums on the fleet vehicle policy insurance under which he seeks to cumulate coverages, nor did he have any recognizable contractual relationship with the insurer. The policy was issued to and paid for by his employer, Upper Darby Township. Appellant was not a named insured or a designated insured of the policy; rather, his entitlement to uninsured motorist benefits under the subject policy rested upon “class two” coverage. Consequently, just as the decedent’s estate in Utica was denied the right to cumulate the uninsured motorist limits for the fleet policy, we can find no basis to permit appellant to stack the multiple coverages in the policy challenged herein.

Judgment holding General Accident liable and modifying appellant’s award to $15,000.00 is affirmed.

      . The owner/operator of said vehicle has not been ascertained.

      . The extra $60.00 premium amount was explained as being derived from the addition of fifteen vehicles to the policy subsequent to the time that it was written.

      . Act of April 25, 1927, P.L. 381, No. 248 as amended, 5 P.S. 161 et seq. The Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, § 501(c), effective in 60 days. Statutory arbitration is now provided by the Judicial Code, 42 Pa.C.S.A. §§ 7301-7320.

      . General Accident filed an appeal from Judge Doty’s order to our court. We affirmed Judge Doty’s refusal to hear the matter since General Accident had the duty to appeal Judge Takiff's order. General Accident Fire and Life Assurance Company v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982) (Spaeth, J.). In that case, the record did not disclose what arguments were made before Judge Takiff. Judge Takiff's order denied the relief specifically requested by General Accident — an injunction against any arbitration. His order, however, referred the arbitration to proceed at common law. Though Judge Spaeth’s opinion indicates that Judge Takiff did refer this matter to common law arbitration, Judge Spaeth’s later statements do not support a conclusion that the order should have res judicata effect as to the type of arbitration which would proceed. As Judge Spaeth stated, 299 Pa.Super. at 317, 445 A.2d at 773:
      "The record does not disclose what arguments were made before Judge Takiff. We may assume — the assumption most favorable to appellant — that the judge heard no argument as to what kind of arbitration should take place, in the event he determined that there should be some kind of arbitration. Nevertheless, the judge did decide that there should be some kind of arbitration.
      3 Appellee Flamini asserts in his Brief, at 10, that Judge Takiff in fact ‘listened to evidence on whether the arbitration should go forward and, if so, under what form’. Perhaps so. But nothing in the record supports appellee’s assertion. Neither appellant nor appellee has filed of record any notes of testimony from the hearing before Judge Takiff nor any affidavits as to what was argued before him."
      In this appeal, appellant does not insist that the question of the type of arbitration involved was determined by Judge Takiff s order. We ture inclined to agree that this aspect of the issue is settled. Instead, appellant narrows his challenge to the applicability of the Arbitration Act of 1927 for other reasons which will be addressed, infra.

      . At the date of the arbitration hearing, September 17,1980, and at the time appellant filed his petition to confirm the award, this version of the arbitration statute governed. See footnote 3, supra.

      . An arbitration award at common law is not reversible on the basis of error of fact or law committed by the arbitrators. Their award may be vacated only on a showing that fraud, misconduct, corruption or other irregularity on their part caused an unjust or unconscionable award. See, Runewicz, supra; Harwitz, supra.

      . Upper Darby Township is a township of the first class and is a political division of the Commonwealth, as is indicated in the Act.

      . Section 11, 5 P.S. § 171 provides:
      In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
      (a) Where there was an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing, or property referred to in the award.
      (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted.
      (c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
      (d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.
      The court may modify and correct the award or resubmit the matter to the arbitrators.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    477 A.2d 515
    Patricia STEPPLING v. PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1984.
    Filed May 18, 1984.
    Reargument Denied July 18, 1984.
    Petition for Allowance of Appeal Denied Nov. 29, 1984.

      Joseph J. May, Erie, for appellant.
    Girard N. Evashavik, Pittsburgh, for appellee.

      Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal presents an issue of first impression under the Pennsylvania No-fault Motor Vehicle Insurance Act. We must decide whether Section 203 of the Act, when read in conjunction with Section 106 of the Act, permits an insured to recover under the statute for hospital expenses which have been paid previously, on behalf of the insured, by a private Blue Cross plan for collateral coverage. Subsumed under this general issue is the need to determine whether interest must be assessed on the delayed payment of no-fault benefits if found to be due, and whether the facts of this case support the award of attorney’s fees.

The trial court received the case upon a stipulation of facts and oral cross-motions for summary judgment. On April 23, 1982, the court filed its opinion and entered its order awarding basic loss benefits to Patricia L. Steppling (Claimant), together with 18% interest as provided in Section 106(a)(2) of the Act, and attorney’s fees. From the entry of judgment on the award, Pennsylvania Manufacturers’ Association Insurance Company (PMA) brings this appeal. We hold that so-called “double recovery” is allowed, that the award of interest and attorney’s fees was proper and, accordingly, we affirm.

I.

The stipulated facts disclose that Claimant was an insured residing in the household of a named insured of PMA. On or about February 21, 1977, she was involved in an automobile accident in Erie County, sustaining injuries which resulted in her hospitalization in three separate medical facilities. Her total hospital expenses were $40,919.87.

On April 4, 1977, PMA issued a check to the first facility in which claimant had been hospitalized to pay for the expenses of Claimant’s treatment. The hospital returned the check and advised PMA the bill had already been paid by Blue Cross. Subsequently, PMA attempted to promptly pay the charges incurred by Claimant at the second medical facility, and again was notified by that facility that Blue Cross had already paid the hospital charges in full. The trial court found that PMA also attempted to pay the third facility, with the same result.

The original complaint had been filed on behalf of Claimant on October 25, 1978, alleging the accident, the injury, coverage with PMA, repeated demands for payment, and refusal by PMA to pay either the hospital expenses or work loss benefits. On October 17, 1980, Claimant received $15,000 for work loss benefits upon PMA’s Petition for Court Approval of Partial Settlement and entry of order thereon. At the time of filing the Stipulation in the trial court on February 26, 1982, it was agreed that the amount of hospital expenses were reasonable, fair and medically necessary, and that reasonable attorney’s fees owed by Claimant, based on actual time expended, were in the sum of $8,323.95.

II.

Before us, PMA argues that its obligation to pay basic loss benefits can be discharged by paying directly to the service providers. It relies solely on that portion of Section 106 of the No-fault Act which provides, in pertinent part:

An obligation for basic loss benefits for an item of allowable expense may be discharged by the obligor by reimbursing the victim or by making direct payment to the supplier or provider of products, services, or accommodations within the time mandated by this paragraph.

40 P.S. § 1009.106(a)(2). PMA would ask us to hold that since the Claimant had not, herself, paid the hospitals, the obligor could not reimburse her, inasmuch as a dictionary definition of “reimbursement” contemplates the payment back to a person of money spent. The insurer would alternatively ask us to accept its assertion that it has made direct payment to the suppliers of service. We need not linger long on any analysis of PMA’s contentions, since the simple fact remains that it neither sought to effect reimbursement of the victim nor has it actually made any direct payment to any of the hospitals.

Under the Act, no-fault benefits are payable monthly as loss accrues. 40 P.S. § 1009.106(a)(1). While we agree that an insurer’s obligation may be discharged either by reimbursement to the victim or by direct payment to the service provider, where neither has occurred, Section 106 of the Act affords no protection to PMA and the obligation remains intact. PMA does not even contend that it attempted to make reimbursement to the victim. And the formality of attempting to make direct payment to the hospitals, where tender is refused, falls short of the statutory requirement of actual payment.

III.

Although we have no difficulty in rejecting PMA’s contentions, the question remains whether a claimant may recover twice for the same economic losses within the clear meaning and intent of the No-fault Act. We are mindful that our supreme court has only recently held that an insured is precluded from recovering damages for economic detriment under the uninsured motorist coverage required in all liability policies by the Act of August 14, 1963, P.L. 909 where that insured has already recovered the same economic losses under the basic loss provisions of a no-fault policy. Tucci v. State Farm Insurance Co., 503 Pa. 447, 469 A.2d 1025 (1983), rev’g Saunders v. State Farm Ins. Co., 294 Pa.Super. 424, 440 A.2d 538 (1982) and companion cases.

In rejecting a “double recovery” in Tucci, our supreme court examined the correlation between the purposes of the No-fault Act and the Uninsured Motorist Act. It determined that a coherent and comprehensive system of compensating and restoring motor vehicle accident victims required that the two acts be construed together as one statute, if possible, and concluded that our legislature intended that the earlier legislation “become a rational part of the new comprehensive system.” Id., 503 Pa. at 454, 469 A.2d at 1028. It thus determined that duplicate recovery would not be allowed beyond the actual special damages an insured may suffer, where the issue of double recovery arises under two complimentary statutes.

However, the principle set forth in Tucci is not controlling on the instant facts. We are not here faced with two legislative enactments which must be construed together, but with a single statute and a private program of insurance. The legislature has provided for situations involving collateral benefits arising under private insurance programs, but only in a limited fashion.

The statutory provision pertinent to our analysis is Section 203 of the No-fault Act, which deals with privately provided benefits, typically under some group coverage relating to the insured’s employment. Sections 203(b) and (c) provide as follows:

§ 203. Collate' al benefits
(b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.
(c) An insurer providing basic loss benefits and tort liability in accordance with the provisions of subsection (b) above shall reduce the cost of such contract insurance to reflect the anticipated reduction in basic loss benefits payable by the insurer by reason of the election of the owner or operator to provide substitute security.

40 P.S. § 1009.203(b) and (c).

These subsections provide that an owner or operator of a motor vehicle may elect to provide security for basic loss benefits through a group or individual program, thus making the automobile insurance policy excess coverage to the private plan for basic loss benefits. When this election is made by the insured, the insurer must then reduce the premium of the insurance contract to reflect the insurer’s reduced exposure through payment of basic loss benefits.

There are specific requirements to be met in pursuing this option, as set forth in 31 Pa.Code § 66.53(c). Without enunciating those requisites, suffice it to say that none of them are present here. In this case, the insured made no election and received a policy of insurance which included basic loss benefits. The insured received no reduction in his premium payments, and PMA does not contend otherwise. Because the election designating Blue Cross as the primary insurer and PMA as excess with respect to professional medical treatment and care was not made, we find no bar in Section 203 to the within claimant’s right to recover under the PMA policy.

This conclusion is consistent with the analysis of private collateral benefits found in the treatise on the No-fault Act published by the Pennsylvania Trial Lawyers Association. D. Shrager, ed., The Pennsylvania No-fault Motor Vehicle Insurance Act (1979). In that work, the editor states, at page 148:

The “benefits other than no-fault benefits” referred to in Section 203(a) clearly envisions medical and hospitalization plans paid for in whole or in part by the victim’s employer. The section does not prevent the victim from realizing a double recovery. It simply requires that any savings which result from an offset provision in any medical or hospitalization plan must be passed on to the individual employee, (emphasis in original).

In passing, we note that Section 206 of the Act provides that benefits received from social security (with certain narrow exceptions), workmen’s compensation, state-required temporary, nonoccupational disability insurance, and all other benefits (except life insurance proceeds) from any government are to be subtracted from no-fault loss. This net loss provision of the Act, nevertheless, has been held not to include sick pay, Erie Insurance Exchange v. Sheppard, 39 Pa.Commw. 30, 394 A.2d 1075 (1978) or, exhaustible disability pay, Tankle v. Prudential Property and Cas. Ins., 306 Pa.Super. 57, 452 A.2d 1 (1982).

Where our legislature has expressly provided for net loss calculations with regard to some categories of benefits (Section 206) and where at the same time it has provided for partial substitution for loss benefits under no-fault through other private programs of insurance (Section 203), we are reluctant to conclude that it intended to place Blue Cross benefits into a net loss category without expressly so providing.

Our conclusion that “double recovery” is allowed in the instant case is strengthened by a recent decision filed in the Third Circuit Court of Appeals. Killeen v. Travelers Ins. Co., 721 F.2d 87 (1983). In that case, the court had to determine if the Assigned Claims Plan provisions of the No-fault Act, 40 P.S. § 1009.108, permitted an accident victim to recover under the Act for hospital and medical expenses previously paid by a Blue Cross/Blue Shield insurance plan. The Blue Cross/Blue Shield policy premium was paid by the claimant’s father in fulfillment of his support obligations under an Ohio divorce decree.

The Court of Appeals, in an Opinion of the Court filed by the distinguished Judge Ruggero J. Aldisert, accepted the “instruction” from this court reiterated in Crawford v. Allstate Insurance Co., 305 Pa.Super. 167, 171, 451 A.2d 474, 476 (1982) that if a court is to err in ascertaining the legislative intent behind the No-fault Act in close or doubtful cases, it should err in favor of extending coverage. Judge Aldisert went on to observe, by way of dicta:

If an individual, injured in an automobile accident is covered by a no-fault automobile insurance policy and, in addition, by a general health and accident policy, he or she may be entitled to reimbursement under each such policy for hospital and medical expenses incurred as a result of a motor vehicle accident. What amounts to a double recovery is allowed because the insured has paid two premiums and is entitled to the benefits purchased under each policy. Where, however, the injured individual is not covered by a privately purchased no-fault automobile insurance policy, but is covered only under a general health and accident policy, the reimbursements available through the Assigned Claims Plan will not, unless a statutory exemption applies, allow a double recovery for incurred hospital and medical expenses.

721 F.2d at 89. (footnote omitted).

The section under review by the Court of Appeals was Section 108(a)(3) of the No-fault Act which provides:

(3) If an individual receives basic loss benefits through the assigned claims plan for any reason other than because of the financial inability of an obligor to fulfill its obligation, all benefits or advantages that such individual receives or is entitled to receive as a result of such injury, other than life insurance benefits or benefits by way of succession at death or in discharge of familial obligations of support, shall be subtracted from loss in calculating net loss.

40 P.S. § 1009.108(a)(3) (emphasis supplied).

The Court held that the payments made by Blue Cross/Blue Shield in discharge of the hospital and medical expenses were “benefits” intended to be excluded, as in discharge of a familial obligation of support, under Section 108(a)(3) of the Act. It therefore concluded that the claimant was entitled to double recovery.

Our own supreme court has had occasion to anticipate the narrow issue presently before us. In Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), the court considered the possibility of double or overlapping recovery in the case which established that survivors of deceased victims could recover both survivor’s loss and work loss benefits under the Act. Although not critical to the decision before it, the court, speaking through now-Chief Justice Nix, observed:

Even assuming such potential for double recovery, this fact, in and of itself, does not necessarily evidence a legislative intention to deny “work loss” benefits to survivors. As appellee Pontius points out in his brief, the legislature has allowed double recovery of other benefits under the Act. For example section 203 of the Act concerning Collateral Benefits permits victims to recover their medical expenses from Blue Cross and Blue Shield and then recover the same expenses a second time from the no-fanlt carrier. It is apparent that the “vice” of double recovery was not foremost in the minds of the legislators when the No-fault Act was enacted. Consequently, the mere possibility of a double recovery by granting “work loss” benefits to survivors of deceased victims, does not seem contrary to either the express or implied intention of the legislature.

491 Pa. at 459, 421 A.2d at 635-36.

Finally, where the statute does not expressly prohibit a double recovery, we are inclined to give recognition to the collateral source rule which has long been a part of the law of this Commonwealth. To paraphrase that rule from tort law, the fact that a claimant under the No-fault Act has received compensation from a source other than the no-fault insurer is without relevancy in a suit brought by the claimant against the insurer to recover basic loss benefits for which the full premium has been paid. Cf. Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 222, 154 A.2d 399, 403 (1959); Denardo v. Carneval, 297 Pa.Super. 484, 494-95, 444 A.2d 135, 140-41 (1982).

We have no difficulty, therefore, in affirming the award of basic loss benefits.

IV.

In its Summary of Argument, PMA sets forth this theory to avoid the payment of statutory interest:

Since the obligation of the insured was discharged by the direct payment to the provider of services or accommodations said payments could not be overdue and thus could not bear interest.

Brief for Appellant, p. 8. It cites to J.C. Penney Casualty Ins. Co. v. Liberty Mutual Ins. Co., 12 D & C 3d 340 (1979) as sole support for its assertion that timely payment by Blue Cross absolves PMA from any liability for interest. This argument is wholly unpersuasive.

Section 106(a)(2) of the No-fault Act states:
(2) No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period____ Overdue payments bear interest at the rate of eighteen per cent (18%) per annum.

The J.C. Penney case was an action for restitution between two insurers under the No-fault Act, where one insurer paid the benefits due under the Act to avoid the penalty provisions here at issue. That insurer then sought restitution from the insurer subsequently found to be liable for payment of benefits. In denying interest at 18% to the plaintiff insurer, the court in J.C. Penney correctly ruled that the Act only addresses the overdue situation between an obligor and a claimant. The case is totally inapposite on this appeal.

Having determined that the within claimant is entitled to recover basic loss benefits, the provision for payment of interest on any payments found to be overdue is clearly applicable. The 18% interest amount is owed regardless of the good faith of the obligor or the reasonableness of the delay. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981); Baker v. Aetna Cas. & Sur. Co., 309 Pa.Super. 81, 95-96, 454 A.2d 1092, 1099-1100 (1982).

V.

We turn now to the issue of whether the facts of this case support the award of attorney’s fees. Section 107 of the Act provides, in part:

(3) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor'has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

40 P.S. § 1009.107(3).

We have previously stated that absence of judicial precedent may not invariably provide an insurance carrier with “reasonable foundation” for denying a claim under the Act, but where a non-frivolous issue is one of first impression, that fact is entitled to substantial weight in determining whether an obligor’s denial of a claim is “without reasonable foundation.” Hayes v. Erie Ins. Exchange, 261 Pa.Super. 171, 176, 395 A.2d 1370, 1373 (1978).

In its brief filed with the trial court on February 19, 1982, PMA placed its principal reliance, in contesting its obligation, upon Commissioner of Insurance Bulletin No. 16, issued October 17, 1975 and titled “Non-Duplication of Benefits Provided by No-fault Benefits in Auto Policies.” Its argument in its brief was to the effect that Bulletin No. 16 “effectively made the group hospital insurance plans, such as Blue Cross, obligors within the context of the No-fault Act,” Brief at p. 3, and therefore PMA was conclusively discharged from payment of benefits. Our review of that Bulletin, a copy of which was attached to the Brief, convinces us that the text of the Bulletin can only be read as providing an optional system of reduced benefits to be offered by health and accident insurance companies. It cannot be read as imposing obligor status upon such companies under the Act.

The brief filed by PMA on May 28, 1982, in support of its exceptions to the court’s order from which this appeal is brought, understandably abandoned that argument, and sought to contend that Section 106 of the No-fault Act supplied a complete answer to claimant’s position. That argument has been maintained on this appeal, and has been rejected in Section II of this opinion. We note that PMA has submitted no case law or citations to any authorities with respect to the principle issue of double recovery in its Brief for Appellant to this court and in Appellant’s Reply Brief, only cites to two cases referred to in the claimant’s brief in Appellant’s Reply Brief.

Appellant’s argument that it has paid the hospitals and therefore should be released from its obligation to the claimant does not square with the stipulated facts. Without being referred to any law which would support such an argument, and knowing of none, we conclude that this attempted argument is frivolous. Likewise, PMA’s protestation that it is unable to “reimburse” the claimant here involved because she is not the person who “spent the money” in discharging the hospital debts constitutes, in our view, a frivolous argument.

We note also that the issue of double recovery, as claimant points out in her brief, is neither novel nor complex. Long before this matter was submitted to the trial court upon stipulated facts (February 26, 1982), our supreme court had alluded to the right to secure double recovery following a Blue Cross payment. Allstate Ins. Co. v. Heffner, supra. Here, the work loss benefit was not paid by PMA until October 1980, three years and eight months after the accident and two years after complaint was filed, even though nothing appears in the record of this case to suggest the work loss claim was ever seriously contested on any ground.

The fact that payment was in fact directly tendered to the service providers by PMA within a short time after each hospitalization supports the trial court’s finding that PMA had all the facts in its possession necessary to make a determination. Additionally, the fact that this particular issue of double recovery following Blue Cross payment did not reach our court until May 1982, some seven years after the Act became effective, lends some support to claimant’s charge that other insurance carriers have routinely honored such claims based on their reading and understanding of the Act.

Our scope of review on this issue is whether the trial court abused its discretion in determining that the obligor had denied any significant part of the insured’s claim without reasonable foundation, thereby justifying the award of attorney’s fees. Given the substantial delay in settling the claim for work loss benefits, which represented a significant part of the claim, and the essentially frivolous nature of the arguments presented to this court on the principal issue, we cannot say that the trial court abused its discretion in awarding attorney’s fees.

VI.

The order from which this appeal is taken provided:

ORDER
AND NOW, to-wit, this 23rd day of April, 1982, the Court finds as follows:
1. For the plaintiff in the amount of $40,919.87.
2. The amount of $35,624.77 is to bear interest at the rate of 18% per annum from the time said payment was overdue until the time of payment to the claimant, plaintiff.
3. The amount of $5,295.10 is to bear interest at the rate of 18% per annum from April 19, 1982 until the time of payment to the claimant, plaintiff.
4. Reasonable attorneys fees are awarded to the plaintiff in the amount of $8,223.95.
5. Costs of suit to be taxed to the defendant.

We affirm paragraphs 1, 3, 4 and 5 of the order, as filed. Because paragraph 2 of the order is silent as to the actual date or dates after which the payments of $12,073.77 and 23,551.00 were overdue, we vacate that portion of the order only. The earliest due date for payment of these benefits is thirty days after receipt of the claims by PMA. 40 P.S. § 1009.106(a)(2). Upon remand, the trial court shall conduct such hearing as may be necessary to (a) determine the due dates of the work loss benefits related to hospital treatment provided at St. Vincent’s Health Center and St. Francis General Hospital, (b) award judgment for interest due thereafter and (c) determine the reasonable fees due Claimant’s attorneys as a result of appellant’s continuing denial of the claim and the prolongation of this action through appeal. Motley v. State Farm Mut. Aut. Ins. Co., 303 Pa.Super. 120, 449 A.2d 607 (1982), aff'd 502 Pa. 335, 466 A.2d 609 (1983); Baker v. Aetna Cas. & Sur. Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

Order affirmed in part and vacated in part. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Purdon Supp.1983); since repealed, Act of February 12, 1984, P.L. -, No. 11, (Senate Bill 942, P.N. 1646, Section 8(A)), effective October 1, 1984.

      . 40 P.S. § 1009.203.

      . Id., § 1009.106.

      . The Stipulation of Facts filed February 26, 1982 only refers to the hospitalization at St. Vincent's Health Center, Erie, Pennsylvania from February 21, 1977 to March 22, 1977 ($12,073.77) and at St. Francis General Hospital, Pittsburgh, Pennsylvania from March 22, 1977 to July 6, 1977 ($23,551.00). The Honorable Richard L. Nygaard, in his Opinion filed April 23, 1982, includes in his findings of fact that Appellee was hospitalized at Broad Street Hospital and Medical Center, Philadelphia, Pennsylvania, dates not specified, ($5,295.10). Appellant PMA, has not contested this finding on appeal, and we accept the trial court’s finding of fact.

      . See footnote 4 supra.

      . At time of filing the complaint, the hospital expenses were alleged to be only $35,624.77, arising from the first two hospitalizations.

      . 40 P.S. § 2000.

      . Act of August 14, 1963, the Uninsured Motorist Act.

      . 40 P.S. § 1009.203.

      . 40 P.S. § 1009.206.

      . Notice of Appeal was filed in our court May 28, 1982.


author: BROSKY, Judge:

text:
    477 A.2d 523
    COMMONWEALTH of Pennsylvania, Appellant, v. Wayne KELLER.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1983.
    Filed May 25, 1984.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Thomas C. Carroll, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

The Commonwealth appeals in this case from an order discharging the appellee and dismissing aggravated assault and related charges that had been brought against him. The order dismissing the charges followed a hearing held on March 9, 1982 to determine whether a Rule 1100(c) petition for an order extending the time for commencement of trial should be granted. The lower court denied the motion and called the case for trial immediately. Because the Commonwealth was unable to proceed, the charges were dismissed and appellee discharged. For the reasons that follow, we reverse.

On May 4, 1981 a criminal complaint was filed charging appellant with simple and aggravated assault, recklessly endangering another person and possessing instruments of crime, generally. The original Rule 1100 “run date” was October 28, 1981.

Although the record is not clear as to what occurred on August 7, 1981, we will assume arguendo that on that date the case was continued at the request of appellee, as the Commonwealth contends and the lower court found.

On October 1, 1981 appellee signed a written waiver of his Rule 1100 rights effective October 1 to December 31, 1981. On October 1 appellee apparently indicated that he wished to represent himself.

The case was listed for trial on December 1, 1981, but appellee was not brought to court on that date, the order directing that he be produced having been sent to the wrong prison. The “bring down” was sent to Graterford, but appellee had been transferred on October 7, 1981 to Camp Hill.

On December 3, 1981 the Commonwealth filed a petition for extension of time.

On January 13, 1982 appellee sent to the court a pro se request that the charges be dismissed for failure to comply with Rule 1100. A hearing was held on the Commonwealth’s extension petition on January 20, 1982, on which date appellee’s dismissal petition was denied and the case was continued to February 21, 1982, presumably because the complainant had not been “brought down”.

On February 20, 1982, a Saturday, the case was again listed for trial. Again the complainant was not present.

When the Commonwealth realized on February 20 that the witness was not present, it sought a “forthwith writ” which request was denied, the court noting that the Sheriff would be unable to secure complainant’s presence until at least 3:00 p.m.

On Monday, February 22, 1982 the Commonwealth filed another petition for extension and trial was set for March 9, 1982. On that date the complainant was once against not present. The transcript of the March 9 proceedings indicates that the witness was not brought to court because there had been a disturbance at the institution where he was incarcerated, which temporarily halted the travel of prisoners. The Commonwealth maintained that it could not proceed without the witness; the court crier opined that the witness could be produced the next day. Finding a lack of due diligence on the part of the Commonwealth, the court denied the petition for extension.

On March 9, 1982 the issue before the lower court was whether the extension petition filed on February 22 should have been granted. The propriety of earlier extensions was not before the court. See Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982) (it is improper for a trial judge to overrule the interlocutory orders of another judge of the same court in the same case.)

The District Attorney explained on March 9 that despite its having requested the presence of the complaining witness on February 20, he was not brought to court. The District Attorney, aware of the Rule 1100 problem, tried to secure the witness’ presence again on February 20, but the trial judge refused to issue the “forthwith writ”.

The District Attorney explained his inability to proceed on March 9 as being attributable not to any error on the part of his office, but due to the occurrence of a disturbance at the prison where the complainant was incarcerated. Appel-lee did not dispute this explanation, which was offered also by the court crier.

In Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982), we explained the standard which must be met by the Commonwealth if it is to prove its due diligence in bringing a defendant to trial. We wrote:

As long as the Commonwealth acted reasonably, in light of the facts and circumstances as they appeared at the time, the Commonwealth acted with “due diligence”, even if it appears in hindsight that there were other, possibly more desirable or efficacious methods that might have beén tried, (citations omitted).

Furthermore, as we review a ruling of the Common Pleas Court that the Commonwealth has or has not met its burden of proving its due diligence in bringing an accused to trial promptly, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983).

Although the lower court did not explicitly state that it had granted the extension to March 9, its decision to call the case to trial on that date implies that the February 22 petition had been granted.

The court then refused to extend the trial date beyond March 9 finding a lack of due diligence on the Commonwealth’s part. With this conclusion, we cannot agree.

Surely the Commonwealth offered a reasonable explanation for its inability to proceed on March 9. We will not hold the Commonwealth, who has properly sought the presence of a witness, responsible for his failure to appear when that failure is attributable to a disturbance at the prison at which he is incarcerated.

As our Supreme Court explained in Commonwealth v. Genovese, 493 Pa. 65, 5-70, 425 A.2d 367, 369-71 (1981).

Rule 1100 'serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980).
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Moreover, we are unwilling to sanction the dismissal of charges against a defendant who not only did not seek such dismissal, but also concurred in the request for extension.

In Commonwealth v. Yancey, 301 Pa.Super. 427, 430 n. 1, 447 A.2d 1041, 1042 n. 1 (1982) we explained:

To establish a Rule 1100 claim, the defendant is obliged to have the lower court rule on its merits prior to trial. The defendant must file either a motion to dismiss under Rule 1100(f) or contest the Commonwealth’s petition to extend. Absent pursuit of one of these alternatives, the claim is waived.

The record indicates that the motion to dismiss filed by appellant in January was denied on January 20. No other written motion to dismiss appears in the record.

The Public Defender did indicate on March 9 that it had made such a motion, but even the defender himself suggested that a motion made by him on that date might not be effective, since at the commencement of the March 9 hearing appellee again indicated that he did not wish to be represented by the Public Defender, but instead wished to represent himself. Appellee specifically requested the court to grant the Commonwealth an extension.

Appellee made it clear on March 9 that he did not want “anything to do” with the Public Defender’s office. When the court said that it wanted to grant the Motion to Dismiss which had apparently been made by the Defender, appellee replied: “You ain’t got to do that. You don’t have to do that. You ain’t doing me no favors. You can take this to trial. Give him his extension.”

Under these circumstances, the lower court erred in denying the petition for extension to the earliest possible date after March 9, 1982.

Order reversed, charges reinstated and case remanded for trial.

      . No transcript is of record of either the January 20 or February 20 hearings and the record therefore does not reflect what efforts were made by the Commonwealth to see that the "bring down” orders were sent to the correct institutions. The Rule 1100 hearings should have been transcribed. See Commonwealth v. Jones, 324 Pa.Super. 32, 471 A.2d 109 (1983).

      . Again the record is unclear as to whether such a motion was in fact made.

      . The trial court said in its opinion that its denial of the petition for continuance is justified also by Court Regulation 82-1, a local regulation. We note that Pa.R.Crim.Proc. 6 which governs local rules and regulations provides at (b) that local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
      As we have explained, Pa.R.Crim.Proc. 1100 permits the Commonwealth to obtain a continuance if it shows that it has exercised due diligence in bringing a defendant to trial. We have found that the Commonwealth did exercise due diligence in attempting to bring appellant to trial and we will not utilize a local rule in such a way as to render the provisions of Rule 1100 meaningless.
      While we certainly commend the Philadelphia Common Pleas Court for attempting to eliminate what the trial court opinion termed “needless delays", we cannot agree that a delay caused by a prison riot which made a witness unavailable is "needless”.


author: CAVANAUGH, Judge:

text:
    477 A.2d 527
    In re JONES & LAUGHLIN STEEL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1983.
    Filed June 1, 1984.
    Reargument Denied Aug. 14, 1984.
    Petition for Allowance of Appeal Denied Jan. 9, 1985.

      James H. McConomy, Pittsburgh, for appellant.
    Before CAVANAUGH, MONTGOMERY and HESTER, JJ.
   CAVANAUGH, Judge:

This is an appeal by Jones & Laughlin Steel Corporation from an order of the Allegheny County Common Pleas Court which awarded dissenting shareholders the sum of $113.30 for each share owned by the dissenters as well as an award to the dissenters’ counsel. The award was made in an appraisal proceeding under § 515 of the Pennsylvania Business Corporation Law, 15 Pa.S.A. § 1515. The history preceding this award involves a number of entities involved directly or indirectly in a Plan of Merger which took effect in November of 1974. The corporate entities were:

LTV Corporation (LTV), Parent
Jones and Laughlin Industries (J&L I), Subsidiary of LTV
JLI-II Corporation, Subsidiary of Jones and Laughlin Industries
Jones and Laughlin Steel Corporation (J & L), merged and into JLI-II

At the time of the merger JLI-II was already the holder of approximately 81% of the shares of J & L. For most purposes on this appeal, we need only to refer to Jones and Laughlin Steel Corporation (J & L). The Business Corporation Law provides for judicial determination of fair value when shareholders wish to dissent to a merger plan. Appellant, J & L, instituted the present action to determine fair value, on the basis, it states, that certain shareholders had elected to exercise their dissenters’ rights. Before the institution of this action, however, a class action had been initiated in the United States District Court for the Southern District of New York. This case has been referred to by the parties herein as the Tanzer/Voege case. In that case, dissenting shareholders made a series of allegations which included, inter alia, claimed violations of provisions of the Securities Exchange Act of 1934 and regulations thereunder. Multiple relief was sought including injunctive relief, a declaration that the plan and merger be declared null and void and damages amounting to the difference between the merger price of $29.00 a share and fair market value of the J & L stock held by the class.

The Tanzer/Voege litigation resulted in a settlement agreement which was finally approved by the court in July of 1980.

Meanwhile, in the present Pennsylvania action, certain dissenters sought to have the merger declared invalid. This resulted in an appeal to this court which determined that under the Pennsylvania Business Corporation Law the remedy of appraisal is exclusive and there is no alternative of recission. In re Jones & Laughlin Steel Corp., 263 Pa.Super. 378, 398 A.2d 186 (1979). The Supreme Court affirmed. In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980). Following these appeals, the Allegheny County court proceeded with the appraisal hearings. J & L sought in the trial court to dismiss the claims of those who had not chosen to opt out of the Tanzer/Voege class action, or alternatively to dismiss the claims of those who had executed releases in the Tanzer/Voege settlement. The trial court refused these dismissal motions without determination of the specific merits, since it felt constrained to proceed to the appraisal by mandate of the previous appellate court opinions.

I

WAIVER ISSUE

Preliminarily, the dissenters have argued on appeal by Motion to Dismiss, that appellant has waived the issues sought to be raised on appeal since the appeal was taken directly from the trial court’s adjudication. Even though, say the dissenters, the appellant filed exceptions below and cross-exceptions were filed thereto, the appeal was taken before the exceptions were argued and the lower court was thus deprived of jurisdiction. Pa.R.A.P. 1701(b). Appellant answers that “statutory proceedings” under § 515 . of the BCL are not governed by the Pennsylvania Rules of Civil Procedure unless specifically provided. Fort Pitt Bridge Works v. Malabar Construction, Inc., 116 P.L.J. 352 (1967) is cited in support of direct appealability. We need not decide this issue and will proceed to consider the merits for a number of reasons. First, we note that appellant, confessing to “procedural uncertainty,” pursued dual post-trial actions, i.e., exceptions were filed and an appeal was taken to this court. Thus, if the appeal were to be quashed as procedurally defective, appellant could proceed below. The lower court has concluded in its adjudication, that it was compelled to proceed with the appraisal action by reason of the mandate of this court, affirmed by the Supreme Court. In addition, the court denied the petition to dismiss the action on the basis of res judicata, estoppel and waiver for essentially the same reasons. The court’s denial was on the basis that “[the dissenting shareholders] have had their right to appraisal adjudicated to finality by two appellate courts of this Commonwealth, to wit, the Supreme and the Superior.” We need not opine as to whether the court properly interpreted the mandate of this court and the Supreme Court. Suffice it to say that there is no reason to conclude that if the matter were quashed the court would act other than it already has, i.e., determine that the threshold question of entitlement to participate in the appraisal action was foreclosed by the orders of our appellate courts. On the other hand, to give instruction to the court would be inconsistent with quashing the appeal. Dissenting shareholders, while arguing the impropriety of the appeal without disposition of the exceptions, retreat in their brief from a motion to dismiss the appeal, to a request for direction to the lower court to consider the exceptions while presumably retaining appellate jurisdiction. Finally, at oral argument, appellees asked that we consider the appeal on the merits.

In view of the fact that the issues are ones of law, that the trial court has read our prior decision, affirmed by the Supreme Court as precluding consideration of the threshold entitlement question on the merits; and the passage of time since the inception of their litigation, we accept the facial propriety of the appeal and address the merits.

II

The argument on appeal is that the court erred in not dismissing the claims of those who had not opted out of the Tanzer/Voege class. It is claimed that participation by these dissenters in the appraisal action should be barred under the doctrines of res judicata, collateral estoppel and choice of remedy. It is further argued that the present claims are barred by reason of a release given on behalf of the Tanzer/Voege class by its representative and in certain cases, by individual releases given by certain dissenters in order to participate in distribution by the settlement fund. Stated simply, the issue is, does failure to opt out of Tanzer/Voege preclude a dissenting shareholder from the benefit of the present appraisal action?

Appellant concedes that dissenters could pursue both the Tanzer/Voege suit and the appraisal action but that a judgment adjudicating these rights in Tanzer/Voege prohibits further pursuit of the appraisal claim.

Res judicata applies when, in two actions, there is (1) an identity in the thing sued upon (2) identity in the cause of action (3) identity of persons and parties to the action, and (4) identity of the capacity of the parties suing or sued. Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).

The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the parties had an opportunity to appear and assert their rights. Callery v. Municipal Authority of Blythe, 482 Pa. 307, 243 A.2d 385 (1968); Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983); Notoro v. Estate of Hyer, 239 Pa.Super. 10, 361 A.2d 766 (1976). In making this evaluation our courts have looked to the basic issues and the harm sought to be remedied in the separate suits. Duquense Slag Products Co. v. Lench, supra; Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). For a prior class action judgment to bar an action on the basis of res judicata the parties must be identical in both suits; the prior judgment must have been entered by a court of competent jurisdiction; there must have been a final judgment on the merits and the same cause of action must be presented in both cases. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974).

As to the identity of cause of action, rather than resting on the specific legal theory invoked, res judicata generally is thought to turn on the essential similarity of the underlying events giving rise to various legal claims. Whatever the conceptual difficulties inherent in the definítion of a “cause of action” often the presence of a single cause of action is clear. Davis v. United States Steel Supply, 688 F.2d 166 (1982), cert. denied 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (applying Pennsylvania law). The Davis court recognized that in determining whether a single cause of action is present one may consider the identity of the acts complained of, the demand for recovery, the identity of witnesses, documents and facts alleged. A lack of identity of these facets would, of course, support the conclusion that there is no identity of cause of action.

Appellant in making its res judicata argument has made only broad out-of-context references to the Tanzer/Voege litigation. A separate examination of each of these actions leads us to conclude that there is no identity of cause of action between Tanzer/Voege and the present appraisal proceedings. In Tanzer v. Haynie, 405 F.Supp. 650 (1976) Judge Frankel described the complaint in the consolidated cases arising out of federal court suits filed as a result of the merger:

The complaint — naming as prime defendants directors of the several corporations and the corporations themselves alleges, inter alia, a series of misrepresentations and omissions in the proxy material that J & L Steel submitted to its shareholders prior to the merger, and seeks, in five counts, money damages, injunctive relief and a declaration of rights.
Count I alleges violations of Section 10(b) and 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j and 78n(a) (1970), and Rules 10b-5 and 14a-9 promulgated thereunder, 17 C.F.R. §§ 240.10b-5 and 240-14a-9 (1975).

and further:

Count I seeks damages amounting to the difference between the price of $29.00 a share and the fair value of the J & L stock held by plaintiff class. Count II, brought pursuant to the same facts as Count I, and seeks damages for deprivation of the benefits and incidents of ownership. Count III is a derivative count, incorporating many of the same factual allegations as Count I, which alleges that the merger has no plausible business purpose of J & L Steel, and that the terms of the merger are so grossly unfair to J & L Steel and reflect such a clear abuse of trust as to render the merger a fraud on J & L Steel. This count seeks injunctive relief as well as a judgment declaring the plan and merger to be null and void. Count IV is brought pursuant to Pennsylvania law, alleging the same facts as those in Count I, and seeking again the Count I and II remedies. Court V is a derivative count against all but Lionel D. Edie & Company seeking remedies identical to those sought in Count IV.

The court, after opining that the suit should not be dismissed went on to state:

None of this is to suggest that the “fairness” of a transaction is, as such, a matter for federal scrutiny. What the federal law does undertake to ensure, however, is that “shareholder approval is fairly sought and freely given,” so that the public shareholders are positioned not only to effect “an intelligent exercise of their appraisal rights,” but also to pursue possible state remedies against unfair compulsion. (Citations omitted.)

The final disposition of the Tanzer litigation is summarized in Federal Securities Law Reports C.C.H. 97,940

Suit to bar consummation of the merger was commended, [sic] and violations of Section 10(b) and 14(a) of the Exchange Act were alleged. The gravamen of the claims asserted was that the proxy materials which made the merger proposal seem fair were, in fact, false and misleading. Moreover, it was alleged that the merger proposal and the price paid for the publicly held shares was grossly unfair. On November 20, 1974, injunctive relief was denied,
In approving the settlement agreement, the court noted that the settlement was virtually unopposed. Although the lone objector did not formally withdraw his objections, he did not press his claim at the hearing. The most cognizable claim under the federal securities law was that defendants violated a duty of full and fair disclosure. It was clear that successful litigation on that issue was uncertain.

It is apparent that the gist of the federal class action was a claim based upon false and misleading information in the proxy supporting the merger proposal and the failure to give full and fair disclosure under securities laws. It is only in reference to claimed damages that the “fair value” of the $29.00 offer is called into reference for the calculation of damages.

The Tanzer litigation is to be contrasted to the appraisal claim under the Business Corporation Law — Rights of Dissenting Shareholders, where the only relief available is a “judgment against the corporation for the amount of the fair value of their shares____” 15 P.S. § 1515(F). This limitation has been recognized by our Supreme Court in the present case upon prior appeal where it was determined that the appraisal remedy was the exclusive right which could be pursued in the present action. The court further recognized that dissenters could seek relief for unfair or fraudulent corporate actions in separate actions. See In re Jones & Laughlin Steel Corp., supra, 488 Pa. 532-3, 412 A.2d at 1103-4. Thus, our highest court has recognized in this very case that separate and distinct causes of action may be pursued as the result of the same purchase offer.

Counsel for the dissenting shareholders has characterized these shareholders in his brief as mostly having small holdings and not represented by private counsel throughout the federal securities litigation. This is borne out by paragraph 5 and Exhibit A of J & L’s petition which commenced the present suit. It describes the dissenters as being 122 in number and owning 25,305 shares. At the outset of the hearing below, the court was advised that stock held by active dissenters at that time was only 8,202 shares. The operation of sophisticated doctrines relating to prior judgments would be particularly harsh in this factual setting. The shareholders presumably were satisfied to maintain their status when they were met with the buy out tender price on a take-it-or-leave-it basis. They were then advised of a federal class action in New York and given the choice to be represented in the class or to “opt out.” Meanwhile, the statutory appraisal action was begun, in Allegheny County by J & L. Thus, the bewildered small shareholder, whose initiative did not play a role in any of these proceedings would seem to be, at least potentially, an unwary victim of the complexities of res judicata, collateral estop-pel, bar by consent judgment, election of remedies, and release.

The significance of the defenses interposed in bar of the present proceedings is apparent. The federal proceedings were ultimately settled on a basis which awarded $.30 to $.50 per share of J & L common stock. The order in the present proceedings including interest is for $113.30 for each share. The view of the federal court as to the likely success of the federal class action was borne out by the meager settlement which ultimately ensued. It is clear that the class action was not the same cause of action as the present one and, therefore, the defense of res judicata is rejected.

We conclude that there is no identity in the cause of action between the present statutory appraisal action and the Tanzer/Voege cases since the gravamen of the latter claim was to seek multiple relief which only incidentally sought to assert damages based upon the failure of the tender offer to represent “fair value” for the shares. The similarity as to one aspect of the relief sought does not create an identity of cause of action. As has been noted, the gravamen of Tanzer/Voege was that the merger was based on false and misleading materials and that there was not a full and fair disclosure — a claim that our highest court has held may not be asserted in the present action.

Similarly, our study of the Tanzer/Voege suit makes it clear that the simple determination of fair value for the J & L stock was not the basis of that suit nor was it an issue that was litigated therein. Thus, the doctrine of collateral estoppel cannot apply. Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62 (1978), Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). Certainly, it cannot be argued that a determination of fair value was essential to the settlement and consequent judgment of Tanzer/Voege, Riverside Memorial Mausoleum v. UMET Trust, supra; Lynne Carol Fashions, Inc. v. Cranston Print Works, 453 F.2d 1177 (1972); Long v. Long, 306 Pa.Super. 142, 452 A.2d 255 (1982); Oak Lane Shopping Center, Inc. v. Flame, 264 Pa.Super. 9, 398 A.2d 721 (1979); Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978).

Appellant further argues that:

A. the consent judgment bars all claims which were or could have been brought in the prior action.
B. the doctrine of election of remedies requires the dismissal of the claims of the non-opting out dissenters.
C. the claims asserted by the dissenting shareholders are barred by the release executed by the representatives of the plaintiffs in the Tanzer/Voege case.
D. the individual releases executed by those dissenters who submitted proofs of claim in Tanzer/Voege bar the claims of those dissenters in this action.

As to the Consent Judgment issue, we have assumed in our discussion as to res judicata that the consent judgment may have res judicata effect. This is the law in our jurisdiction. Pennsylvania Human Relations Commission v. Graybill, Inc., 482 Pa. 143, 393 A.2d 420 (1978); Lukacko v. Macerino, 192 Pa.Super. 4, 159 A.2d 235 (1960); Commonwealth v. Borough of Carlisle, 16 Pa.Cmwlth. 341, 330 A.2d 293 (1974). However, the Consent Judgment was a judgment only as to the matter in litigation and we have decided that the present cause of action is not barred by the claim asserted in Tanzer/Voege. Thus, a consent decree may not be used as a bar to a subsequent claim which was not in the contemplation of all parties consenting to the judgment. See Keystone Building Corp. v. Lincoln S. & L. Assn., 468 Pa. 85, 360 A.2d 191 (1976). Nor, as previously stated, do we think the consent judgment can be interpreted as implicating the doctrine of collateral estoppel for the purpose of defeating the present fair value proceedings.

Again, arguing that the federal proceeding involved a determination of fair value it is argued that the doctrine of election of remedies precludes pursuance of the present action. Suffice it to say that we have already considered that the federal litigation cannot reasonably be interpreted as one which seeks a fair value appraisal and, thus, the election of remedies doctrine has no applicability. There is no identity of cause of action, rights asserted or relief sought. See Cunningham v. Joseph Horne Co., 406 Pa. 1, 176 A.2d 648 (1961).

At the conclusion of the federal action, the representatives of the class entered into a stipulation of settlement which, inter alia, included the following language releasing J & L from liability in the following pertinent language:

[The plaintiffs released J & L from all claims] arising from or in any manner relating to the acts, omissions, facts, matters or transactions asserted in the Consolidated Amended and Supplemental Complaint in the aforesaid consolidated action, or which might have been asserted in that complaint on the basis of or arising from the acts, omissions, facts, matters and transactions alleged in that complaint or arising out of the prosecution, defense, settlement and compromise of the aforesaid consolidated action or any proceeding, whether civil, criminal, administrative or investigative, or directly or indirectly arising out of or related to matters referred to in that complaint.

The effect of a release must be determined from the ordinary meaning of its language. Wolbach v. Fay, 488 Pa. 239, 412 A.2d 487 (1980). It ordinarily covers only such matters as can fairly be said to have been within the contemplation of the parties when given. Gateway Center Corp. v. Merriam, 290 Pa. 419, 434 A.2d 823 (1981); and In re Estate of Bodnar, 472 Pa. 383, 372 A.2d 746 (1977). From a reading of the release language quoted above and in consideration of our discussions as to the lack of identity between the present action and the federal class action, we conclude that the release does not have the effect of precluding this proceeding. For the same reasons we reject the argument that the individual releases executed by those dissenters who submitted proofs of claim in the federal action preclude their participation in the present action.

We finally reject appellant’s claim in bar of the present appraisal action.

Ill

The next issue raised on appeal by J & L relates to the trial court’s determination of the fair value of the J & L stock at $54.00 per share. This appraisal was reached by the court after conducting extensive hearings which were reflected in a transcript covering 1,760 pages. We first look to the case of Appeal of O’Connor, 444 Pa. 206, 283 A.2d 279 (1971) in order to determine our scope of review. In that appeal from the trial court adoption of the findings of an appraiser in proceedings under § 515 of the Business Corporation Law the court stated:

Our review of this appeal encompasses only an ascertainment of whether the findings of the trial court are supported by competent and substantial evidence. We reject appellant’s request that we make an independent determination as to the fair value of her shares: “This court does not sit as a trier of issues of fact expecting to be persuaded that one or the other side is more credible. That is only a task for the trial court and we would never invade that area of the judicial process.” (Footnotes and citations omitted).

Appeal of O’Connor, supra, 444 Pa. 209, 283 A.2d at 280.

The O’Connor court further noted that substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

After remand, the O’Connor case underwent an appraisal based on the previous record by the trial court without the appointment of an appraiser. On appeal from that adjudication our Supreme Court adopted the use of three methods of evaluation to be considered in the judicial determination of intrinsic value for fair value purposes. These factors are (1) net asset value (2) actual market value and (3) investment value. The court noted the following definitions of these methods.

7. Net Asset Value is the share which the stock represents in the value of the net assets of the corporation. Such assets include every kind of property and value, whether realty or personalty, tangible or intangible, including good will and the corporation’s value as a going concern.
Investment Value is an estimate of present worth in light of past, present and prospective financial records of the company and is obtained by capitalizing earnings. There are two basic steps in the capitalization process: calculation of a representative annual earnings figure, and choice of a capitalization ratio which reflects the stability and predictability of earnings of the particular corporation.
, Market Value refers to the price at which the stock was selling on the market prior to the action which is objected to, disregarding any change in price due to the action.

O’Connor Appeal, 452 Pa. 287, 288, 292, 293, 304 A.2d 694, 698 (1973).

Both parties agree that O’Connor is the controlling case as to the standards for statutory appraisal proceedings under the Pennsylvania B.C.L. The lower court in compliance with these standards evaluated the testimony including the two experts who testified on behalf of J & L. Witness Gilbert E. Matthews concluded that the market value of J & L shares on the date of the merger was between $19.00 and $23.00 per share; and that the investment value was $15.00 to $16.00 on a seven year average earnings basis and $22.00 to $26.00 on a one year average. He equated the asset value to investment value and after assigning weights of fifty percent to market value, forty percent to investment value and ten percent to asset value arrived at a fair value of $19.00 to $20.00 per share. J & L witness Eugene Frank opined that the J & L asset value was from $13.46 to $18.06 per share. Witness Ehrgott, for the dissenters, concluded in his testimony that the J & L assets and inventories were undervalued and were in fact worth $145.38 per share. The court noted the difficulty of determining the fair market value as of November 22, 1974 based on this evidence.

In deciding the issue the court rejected the investment value method of evaluation since it concluded that J & L under the control and management of LTV seriously underestimated the earnings of J & L because of this and LTV’s control over J & L’s earning picture, its records and dividends there was no fair basis upon which to use the investment values of evaluation.

As to market value, the court observed that when LTV was attempting to acquire a dominant position in J & L it made an offer of $85.00 per share and that as a result of this offer and subsequent purchases by LTV, it was able to achieve ownership of eighty-one percent of the outstanding common stock at the time the present merger offer was made. This control, the court concluded, permitted LTV a “controlling and restrictive” effect on the market value on the remaining shares traded on the market. The court further noted that the $29.00 per share offer effectively put a ceiling on the market trading price of the shares and stated that in the recent past the announcement of an increase in earnings (though in fact understated) was not proportionately reflected in the market price of the stock. Thus, the market value method was also rejected.

Finally, the court in accepting the net asset value method concluded:

C. THE NET ASSET VALUE METHOD OF EVALUATION
Although there is a great variance in the facts presented, we feel that the net asset value method and this method alone is the most responsible vehicle for determining the fair value of J & L’s common stock. While there is credible evidence in the record that the assets of J & L were greatly undervalued, there is also correspondingly credible evidence to the effect that the liability portion of its balance sheet did not completely reflect its unfunded pension commitments. We accept, only because of the nature of the record which we have before us, the balance sheet of J & L as of that period when the proposed merger was to become effective as most nearly reflecting the true and accurate fair value of its common stock. That value, according to J & L’s own balance sheet statement, is $54 per share.

While the mandate of O’Connor is that the appraising court consider the three methods of valuation, it does not require that after consideration, actual weight be ascribed to any of the valuation methods in attempting to determine a fair value. The goal of fairness would suggest the opposite: i.e., once there has been a determination that a method of evaluation is of no assistance or would be misleading, it should not become a component of the final determination. We note, for example, that in O’Connor I the court observed that since the shares of the subject company were not traded on a public market, the market value theory would have no applicability.

The record supports the conclusion that the market value was unreliable. The purchase of the J & L minority interest was characterized as an “acquisition.” Market uncertainty was undoubtedly affected by the fact that the majority acquiring interest offered $25.00 in August, 1974 for the minority shares, and within weeks changed the offer to $29.00. An expert witness for J & L agreed that when the majority interest was obtained by the LTV interests in 1968 the offer ($85.00) was eighteen times current earning compared with the present offer of four times earnings. In the interim, the control exercised by LTV over the fortunes of J & L and, therefore, the market value of its stock cannot be denied. The market picture was further complicated by an understatement of earnings during a period relevant to the market valuation. From our review of the record in this case, we conclude that there was competent and substantial evidence to support the appraisal court’s conclusion that market value be rejected as a reliable method for evaluating the fair value of J & L stock. The record similarly supports the rejection of the investment value method since there is credible evidence that the earnings under the circumstances did not present a fair picture for the calculation of investment value.

The court also heard extensive evidence on the net asset value method of evaluation. There was evidence of the cash and liquid assets held by J & L which, of course, would not be subject to the argument that book value in a going concern should be discounted. The court heard offsetting arguments as to depreciation, value of coal and iron ore reserves and other aspects of the determination of fixed value. While appraisers could differ as to the true asset value, we believe that the court did not err in finally accepting the asset value from J & L’s own balance sheet in the sum of $54.00.

It is argued that the court erred in failing to consider as evidence on the fair value issue the affidavit of counsel for the plaintiffs in the Tanzer/Voege case. That affidavit was submitted in support of the proposed settlement. While it is not entirely clear that the court did not consider the affidavit, we conclude that it would not be error not to consider it. The conclusory opinion in that affidavit is of insignificant value when compared to the great mass of specific documented evidence presented to the court bearing on the issues in the appraisal proceeding. The Tan-zer/Voege affidavit, of course, only dealt with the expectations of success on the liability of the defendants in that litigation which we have determined to be entirely different from the present case. To the extent that the affidavit, advocating approval of a settlement, discounted the hope of success in demonstrating the market asset or investment value in excess of $29.00 it certainly could not and should, in any event, deter the present court from discharging its duty' to make an independent appraisal.based on the abundant evidence before it.

We further conclude that the record supports the trial court’s conclusion that a 10.5% interest calculation is proper to compensate the dissenting shareholders for the deprivation of the use of the fair value of their stock from the effective date of the merger plan.

Order affirmed. Remanded for entry of judgment. Jurisdiction relinquished.

      . The opinion of the court below set forth the following calculations relating to the amount to be paid to dissenting shareholders:
      Fair value per share of J&L stock as of November 22, 1974 $ 54.00
      Interest per share of J&L stock from November 22, 1974 to December 30, 1982 71,09
      Total value of a share of stock plus interest $125.09
      Less: Amount allowed for attorneys’ fee per share 11.79
      Net amount to be paid to dissenting shareholders for each share $113.30

        . Opinion of Ralph H. Smith, Jr., J.
      In accordance with the order of our Superior Court of February 7, 1979 which was affirmed by our Supreme Court on March 20, 1980, this court is under “instruction to proceed with the appraisal action.” These instructions finally resolved this court’s jurisdiction and just what function it was to perform, i.e., we are to proceed with the appraisal action. This is the law of the case. (Footnote omitted.)

      . Judge Frankel stated in Tanzer v. Haynie, at 405 F.Supp. 650 (1976): When the first of the non-consolidated cases was brought, plaintiffs moved for a preliminary injunction. Upon the learning, swiftly acquired then, the court perceived only slender prospects that plaintiffs would eventually succeed on the merits____ Though more than a year has passed, the matter has not developed enough to justify any different attempt to forsee its outcome.