author: WIEAND, Judge: POPOVICH, Judge,

text:
    603 A.2d 208
    John J. FIFFICK, an individual, Appellant, v. GAF CORPORATION, in its own right and as Successor-in-Interest to the Ruberoid Company, Raymark Industries, Inc., in its own Right and as Successor-in-Interest to Raybestos Manhattan, Inc., the Celotex Corporation, in its own Right and Successor-in-Interest to the Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Corporation, in its own Right and as Successor-in-Interest to Baldwin Hill Co., Baldwin-Ehret Hill, Inc., Ehret Magnesia Manufacturing Company and to the Insulation Division of Mundet Cork Company, to Mundet Company and to Keene Building Products, Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Garlock, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., in its own Right and as Successor-in-Interest to Armstrong Cork Co. and Armstrong Contracting and Supply Co., H.K. Porter Company, Inc., in its own Right and as Successor-in-Interest to Southern Textile Company, Formerly Southern Asbestos Company, Fibreboard Corporation, in its own Right and as Successor-in-Interest to Fibreboard Paper Products Corporation, Pabco, Plant Rubber & Asbestos Works, and Plant Asbestos Co., A.P. Green Refractories Company, Dresser Industries, Inc., and its Division Harbison Walker Refractories, Kaiser Aluminum & Chemical Corporation, and its Division Kaiser Refractories, and North American Refractories Company, Appellees.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1991.
    Filed Feb. 12, 1992.

      Janice M. Savinis, Pittsburgh, for appellant.
    Daniel P. McDyer, Pittsburgh, for Gaf Corp., appellee.
    Jane Charlton, Pittsburgh, for Raymark Industries, appellee.
    William R. Haushalter, Pittsburgh, for Keene Corp., appellee.
    Patrick R. Riley, Pittsburgh, for Owens-Coming, appellee.

      John L. Vitsas, Pittsburgh, for Owens-Illinois and H.K. Porter appellees.
    John A. Bacharach, Pittsburgh, for Garlock, appellee.
    Robert M. Owsiany, Pittsburgh, for Dresser Industries, appellee.
    Charles S. Warren, Pittsburgh, for North American Refractories, appellee.
    Before WIEAND, POPOVICH and MONTGOMERY, JJ.
   WIEAND, Judge:

In this case to recover damages for injuries allegedly resulting from exposure to asbestos, the trial court held that plaintiffs evidence was insufficient to show that he had been exposed to asbestos products manufactured by Owens Corning Fiberglas Corporation and, therefore, entered summary judgment in favor of said defendant. The plaintiff, John J. Fiffick, has appealed. After careful review of the record, we affirm.

From 1947 until his retirement in 1985, Fiffick labored in various capacities at the Wheeling-Pittsburgh Steel Plant in Monessen. In November, 1988, he filed an action against numerous manufacturers and distributors of asbestos products, alleging pulmonary and emotional injuries caused by exposure to airborne asbestos fibers at his place of employment. After discovery, Owens Corning filed a motion for summary judgment based on Fiffick’s inability to establish exposure to any asbestos product which it had manufactured or sold. The trial court, following argument and upon consideration of affidavits, discovery depositions and answers to interrogatories, granted the motion for summary judgment.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). In Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989), the Court said:

In passing upon a motion for summary judgment the court must examine the record in the light most favorable to the nonmoving party____ It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried____ Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings____ The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986) (citations omitted).

Once a motion for summary judgment is made and is properly supported, however, the nonmoving party may not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that “by affidavits or as otherwise provided in this rule, [the nonmovant] must set forth specific facts showing that there is a genuine issue for trial.” The purpose of Rule 1035(d) “ ‘is to assure that the motion for summary judgment may “pierce the pleading” and to require the opposing party to disclose the facts of his claim or defense.’ ” Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran [sic] 2nd § 1035(d):5 at 460 (1976) (emphasis added by Roland court), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment. Id., 355 Pa.Superior Ct. at 501, 513 A.2d at 1034.

Id., 391 Pa.Superior Ct. at 346-347, 571 A.2d at 402 (footnotes omitted).

In an asbestos exposure case, summary judgment is properly entered in favor of a defendant when the plaintiff is unable to produce evidence from which a jury can find that the defendant’s products were the cause of the plaintiff’s injuries. In Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988), allocatur denied, 520 Pa. 605, 533 A.2d 968 (1988), the Superior Court said:

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985).

Id., 375 Pa.Superior Ct. at 191, 544 A.2d at 52. See also: Bushless v. GAF Corp., 401 Pa.Super. 351, 357, 585 A.2d 496, 499 (1990); Samarin v. GAF Corp., supra, 391 Pa.Super. at 351, 571 A.2d at 404.

In the instant case, James DeRocco, another steelworker, stated that a product known as Kaylo and manufactured by Owens Coming had been purchased and used at the steel plant in Monessen. However, he could not say when or where the Kaylo was used. This was important because in 1972 Owens Coming discontinued the use of asbestos in the manufacture of Kaylo. After 1972, the product was free of all asbestos.

The plaintiffs own testimony also fails to disclose that he was ever exposed to asbestos fibers emanating from Kaylo manufactured by appellee. Although plaintiff, in his deposition testimony, said that he had worked periodically within one to twenty-five feet of pipecoverers and that he had inhaled dust generated by the workers’ manipulation of asbestos materials, he could only place himself in proximity to Kaylo in the late 1970s and early 1980s. As we have already observed, however, the Kaylo manufactured and sold by Owens Corning after 1972 contained no asbestos.

The plaintiff-appellant argues that a jury could infer exposure to asbestos from DeRocco’s testimony because, according to expert testimony, asbestos fibers drift far from their point of origin after they have been released into the air. On this basis, he argues that some of the asbestos fibers from Kaylo must have been inhaled prior to 1972. A similar argument was made in Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir.1990). In a careful and well reasoned analysis of the evidence and correct application of Pennsylvania law, the Court concluded that expert testimony of fiber drift was valuable in assisting a plaintiff in meeting the Eckenrod standard, but that by itself it was insufficient to satisfy the quantum of evidence required by Eckenrod. The Robertson Court said:

Of the three Eckenrod requirements, regularity, frequency and proximity, the fiber drift theory bears on proximity alone; it sheds no light on how often a particular product was used, nor does it establish how often a particular worker was present in an area into which fibers may have drifted. It is only when regularity and frequency are established that testimony implicating fiber drift and proximity becomes relevant.
Our reading of Pennsylvania case law and the law in other jurisdictions bearing on causation in asbestos cases convinces us that competent factually based expert testimony regarding fiber drift may be offered by a plaintiff where it rests on a properly laid foundation showing the frequency with which a defendant’s product was used, the area in which it was used and the regularity of a plaintiff’s employment within a zone covered by the reach of fiber drift. While the fiber drift theory may be useful in extending the zone of proximity, it cannot, standing alone, allow a plaintiff to circumvent the other requirements of Eckenrod.

Robertson v. Allied Signal, Inc., supra at 383 (footnote omitted).

Here, there was no evidence of when appellee’s product had been used, where it had been used, or how frequently it had been used. There also was no evidence that the plaintiff-appellant had worked at or near a place where appellee’s asbestos product had been used or manipulated. The motion for summary judgment could not be defeated by a mere showing that Owens-Corning’s product had been present in a large steel plant at unspecified times and in unquantifiable amounts. Therefore, the entry of summary judgment by the trial court was proper. Appellant failed to show that he had been exposed to a product containing asbestos which had been manufactured by Owens-Corning. Judgment affirmed.

POPOVICH, J., files a concurring statement.

POPOVICH, Judge,

concurring.

I concur in the result. However, in my view, it was unnecessary to consider whether the Eckenrod standard was met in this case. As stated by the majority, the only evidence that the product Kaylo was present at the steel plant in Monessen was the deposition testimony of James DeRocco, another steelworker. His testimony was that Kaylo, manufactured by Owens Corning, was purchased and used at the plant. The majority points out that while Kaylo was still produced during the time of the appellant’s exposure to asbestos, it was free of all asbestos after 1972. There is no evidence that the purchase of the Kaylo product by the plant was made prior to 1972 or that the Kaylo used at the plant was in fact the Kaylo containing asbestos or the Kaylo which did not contain asbestos.

We therefore agree that appellant’s allegations against Owens Corning cannot withstand appellee’s motion for summary judgment but do so without necessity of reaching the Eckenrod analysis.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    603 A.2d 212
    LUZERNE COUNTY CHILDREN AND YOUTH SERVICES, Appellee, v. Larry COTTAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed Feb. 26, 1992.

      Larry Cottam, pro se.
    Anthony J. Lumbis, Wilkes-Barre, for appellee.
    Before ROWLEY, P.J., and OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Luzerne County, ordering appellant Larry Cottam to pay support for his minor child, Laura Cottam. Laura Cottam is in the care of appellee Luzerne County Children and Youth Services [hereinafter “Luzerne C.Y.S.”]. Finding no merit to appellant’s arguments, we affirm the lower court. A discussion of the case follows.

Appellant Larry Cottam was convicted of third-degree murder in the starvation death of his minor child, Eric. When appellant was incarcerated as a result of that conviction, appellant’s other child, Laura Cottam, was placed in the care of appellee Luzerne C.Y.S. Appellant is presently free on bail pending appeal of his conviction; however, Laura Cottam has remained in the care of appellee Luzerne C.Y.S.

Luzerne C.Y.S. brought this action against appellant for support of appellant’s minor daughter. The action resulted in a master’s report, to which appellant took exceptions. The court denied the exceptions and entered an order requiring that appellant pay support in the amount of $20.00 per week plus $2.00 per week on arrearages, and, further, that appellant provide health insurance coverage for Laura Cottam. From this order, appellant filed this timely appeal.

Appellant raises four issues for our consideration on appeal.

1. Whether the issuance of a support order is improper since the parents have been wrongfully denied the custody of their child due to the court’s erroneous adoption of a psychiatric evaluation and a family service plan which challenge the sincerity and validity of the parents’ religious beliefs.
2. Whether the issuance of the support order is improper since it requires the father to underwrite the Commonwealth’s systematic attempt to reprogram his child’s religious beliefs.
3. Whether the issuance of the support order is a violation of due process since the dependency hearings are incomplete and no final order of dependency has been issued.
4. Whether the issuance of the support order is improper since the questions in this appeal are relevant to the issue of child support as well as child custody.

(Appellant’s brief at 3.) Finding no merit to appellant’s arguments, we affirm the decision of the lower court.

The standard of review for support orders is well established. An appellate court will not interfere with a child support order absent a clear abuse of discretion. Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987). An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). “Further, it is within the sole province of the trial judge, sitting without a jury, to assess the credibility of the witnesses and to weigh their testimony.” Rock v. Rock, 385 Pa.Super. 126, 134, 560 A.2d 199, 203 (1989).

Appellant’s first argument is that the lower court erred in issuing the support order, because Laura Cottam’s placement with Luzerne C.Y.S. is erroneous. Appellant argues that the placement was improper because the care and treatment she is receiving is antithetical to her and her parents’ religious beliefs. The question of the appropriateness of Laura Cottam’s placement with Luzerne C.Y.S. is not properly before this Court. The order appealed from deals only with Larry Cottam’s duty to support his minor child. This Court will not decide matters outside the order appealed. Appellant’s first argument is without merit.

Appellant’s second argument is that child support was improperly awarded because it forces appellant to underwrite a system of child care of which he is opposed on religious grounds. This argument is somewhat related to appellant’s first argument; and to the extent the argument is an attack on the child’s placement, we find that it is not before the Court for the reasons discussed above. To the extent the argument is an attempt to establish a religious exception to child support, we find it to be a novel, but meritless argument. “Parents are liable for the support of their children who are unemancipated and 18 years of age or younger.” 23 Pa.C.S.A. § 4321(2). The legislature has set forth this requirement in clear and certain terms. The legislature has in no way allowed for the finding of a religious exception to the obligation to support a minor unemancipated child. Appellant’s arguments regarding the religious implications of the care his daughter is receiving from appellee do not relate to his obligation to support his daughter. Only appellant's obligation to support his daughter is before the Court. Even if we were to assume a religious problem with the care Laura Cottam is receiving, this would in no way affect Larry Cottam’s duty to support her. Appellant’s second issue is without merit.

Appellant’s third argument in this matter is that the issuance of a support order is a violation of due process because the dependency action is not finalized. This argument lacks all merit. Appellee is entirely correct in arguing that custody and support are distinct concerns, and that the obligation to support one’s child is not dependent upon a parent’s having custody of a child. Commonwealth, ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981). At present it appears from the record that Laura Cottam was placed with Luzerne C.Y.S. in 1989 upon the incarceration of appellant and his wife. As far as we can determine from the record, this placement has continued to date. Whether there are challenges pending to the child’s placement is irrelevant. The child’s care is being provided by Luzerne C.Y.S. and support is due. Appellant’s third argument is without merit.

Appellant’s final argument is that the issues he raises here are relevant to child custody as well as child support. Appellant is mistaken. We have previously discussed the applicability of appellant’s arguments to support and custody. We repeat again that we find that appellant’s arguments have no bearing upon his duty to support his child, and whether or not they have any bearing upon child custody/dependency is not before this Court. Appellant’s final argument is without merit.

Finding merit to none of appellant’s arguments, we affirm.

Order affirmed.

      . It is unclear why Luzerne C.Y.S. only brought an action against appellant and did not also bring an action against the child’s mother. The law is clear that both parents are responsible for a child’s support.

      . We note that appellee Luzerne C.Y.S. has argued that appellant has waived the issues presented by failing to raise them in the court below. While we find appellee’s argument persuasive, we believe appellant has tenuously preserved the issues presented in the letter he attached to and referred to in his exceptions. In making this determination, we recognize that appellant has been pro se throughout this matter.

      . Although the issue of Laura Cottam’s dependency is clearly not before the Court, we doubt we would find any error in the child’s placement. Appellant and his wife were found guilty of third-degree murder in the starvation death of another child. We would likely have little difficulty in affirming the placement on such facts.


author: WIEAND, Judge:

text:
    603 A.2d 214
    Richard D. CIAVARRO and Beverly L. Ciavarro, his wife v. COST CONTROL MARKETING AND MANAGEMENT, INC., Handcrafted Homes, Inc. t/a Preferred Builders, Preferred Builders, Inc. Appeal of COST CONTROL MARKETING AND MANAGEMENT, INC.
    Superior Court of Pennsylvania.
    Argued June 19, 1991.
    Decided Feb. 5, 1992.

      Marshall E. Anders, Stroudsburg, for appellant.
    James V. Fareri, Stroudsburg, for Ciavarro, appellees.
    C. Rodriguez, Stroudsburg, for Handcrafted Homes, appellee.
    Domenic P. Sbrocchi, Bangor, for Preferred Homes, appellee.
    Before ROWLEY, President Judge, CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

This is an appeal from a decree in equity which permitted rescission of a real estate transaction by the buyers. After careful review, we affirm.

Our standard of review in equity matters is narrow. We will reverse only when the chancellor has committed an error of law or has abused his or her discretion. See: Sack v. Feinman, 489 Pa. 152, 165-166, 413 A.2d 1059, 1066 (1980); Roberson v. Davis, 397 Pa.Super. 292, 295, 580 A.2d 39, 40 (1990); Hostetter v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1249-1250 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989). The chancellor is the ultimate fact finder. Roberson v. Davis, supra 397 Pa.Super. at 295, 580 A.2d at 40. His or her findings “will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.” Id. at 295, 580 A.2d at 40. See also: Felmlee v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976).

On or about October 12, 1987, Richard and Beverly Ciavarro, husband and wife, visited “Pocono Model Village World” in Coolbaugh Township, Monroe County. Pocono Model Village World was being developed by Cost Control Marketing and Management, Inc. (Cost Control). It shared office space with Preferred Builders, Inc. (Preferred), which was building homes on lots sold by Cost Control. At this joint office, the Ciavarros met Martha Decker and told her they wished to purchase a home in the Poconos. They explained that they did not wish to purchase a lot separately but wanted a single transaction involving a lot improved by the construction of a home. Decker showed the Ciavarros several model homes and introduced them to a representative of Preferred Builders to discuss the construction of a home.

On the same day, the Ciavarros executed a standard written agreement to purchase a tract of land from Cost Control for a price of thirty-five thousand ($35,000.00) dollars. Of this total amount, they were to make a down payment of $8,750.00. The balance was to be financed by a purchase money mortgage, which the Ciavarros signed the same day in favor of Cost Control. They also signed a collateral note and accepted notice of an assignment of the loan to Northeastern Bank of Pennsylvania.

On October 26, 1987, in response to repeated calls by Richard Ciavarro, Martha Decker prepared and the buyers and seller executed a supplemental document which they entitled “Letter of Memorandum.” It provided as follows:

Letter of Memorandum between Richard D. Ciavarro and Beverly L. Ciavarro (buyers), and Pocono Model Village World (sellers).
The Seller agrees that if buyers are unable to secure a construction loan based on their prevailing income and credit status that all monies made as a deposit on home-site K-039 A Pocono Country Place will be refunded. The Buyer agrees to make a minimum down payment of 35% plus closing costs on the total house and land package, provide all necessary information required by the lender and that the amount of the mortgage applied for will not exceed the prevailing income to debt standards of the lenders.

A deed for Lot # 39, Section K, as shown on the plan of a Pocono Country Place, was subsequently executed. The deed contains a date of November 13, 1987, but the same was not recorded until June 24, 1988.

On November 14, 1987, the Ciavarros contracted with Preferred Builders for the construction of a home on their lot. The contract price was sixty thousand, seven hundred ($60,700.00) dollars. On the same day, they signed a worksheet evidencing that an application would be made on their behalf for a mortgage in the amount of sixty-six thousand, nine hundred ninety ($66,990.00) dollars, repayable in thirty (30) years at a fixed rate of interest. A mortgage application was submitted to Citicorp Mortgage, Inc., which rejected it on March 9, 1988.

On May 27, 1988, the Ciavarros notified Martha Decker that they wanted their money returned because of the rejection of their mortgage application. Cost Control refused. The Ciavarros then employed counsel, who made a formal demand for rescission on July 12, 1988. On July 26, 1988, First Lenders Mortgage Services notified the Ciavarros that they had been approved for mortgage financing in the amount of sixty thousand ($60,000.00) dollars, payable in thirty (30) years, at a variable rate of interest. This mortgage commitment represented less than sixty-three (63%) percent of the total cost of the land and building.

The Ciavarros then commenced an action in equity against Cost Control and Preferred Builders to rescind all transactions involving the Pocono real estate. Prior to trial, their claim against Preferred Builders was settled, and the action against it was discontinued. A trial ensued against Cost Control in which the court heard evidence from which the Ciavarros contended that they had been defrauded. The trial court made no findings regarding the claim of fraud and held that the Ciavarros had a right to rescind under the terms of their agreement because of their inability to obtain the required mortgage financing within a reasonable time. Therefore, the court directed Cost Control to repay the sum of $14,321.43, plus interest, and directed the Ciavarros to execute and deliver a deed for Lot 39, Section K, on Plan of a Pocono Country Place.

On appeal, Cost Control argues that (1) the supplemental agreement lacked consideration and (2) all agreements merged in the deed for the tract purchased by the Ciavarros. We reject these arguments for the following reasons.

The trial court found that the supplemental agreement between the parties was “in furtherance of the parties’ original agreement that the land purchase and home construction would be financed as one transaction.” When the original documents were prepared, Martha Decker used a standard form of agreement. This was ill-equipped to reflect the parties’ agreement, and she failed to modify it to state correctly that agreement. When Ciavarro repeatedly called Decker about this, she prepared a supplemental agreement which attempted to state the parties’ actual agreement.

Under these circumstances, the supplemental agreement was supported by sufficient consideration. “While it is true that the performance of an act which one party is legally bound to render to the other party is not legal consideration ... this rule is subject to an exception where the very existence of the duty is the subject of honest and reasonable dispute.” Blaisdell Filtration Co. v. Bayard & Co., Inc., 311 Pa. 6, 9, 166 A. 234, 235 (1933). See also: Restatement (Second) of Contracts § 74. Compare: Crown v. Cole, 211 Pa.Super. 388, 236 A.2d 532 (1967). In the instant case, where there was a good faith dispute about the terms of the parties’ agreement, that dispute was sufficient consideration for a supplemental agreement which modified the parties’ initial draft by adding a condition which was necessary to conform the agreement to the parties’ initial intent.

Appellants’ argument that the supplemental agreement merged in the deed must also fail.

The general rule is that preliminary agreements and understandings relating to the sale of land become merged in the deed; this rule, however, does not apply to independent convenants [sic] or provisions in an agreement of sale not intended by the parties to be incorporated in the deed. In such case the delivery of the conveyance is merely a part performance of the contract, which remains binding as to its further provisions: Seldon [Selden] v. Williams, 9 Watts 9; Walker v. France, 112 Pa. 203 [5 A. 208]; Close v. Zell, 141 Pa. 390 [21 A. 770].

Caveny v. Curtis, 257 Pa. 575, 581, 101 A. 853, 854 (1917). The covenant in the instant case made reference to a construction loan and permitted the buyers to rescind in the event an appropriate loan could not be obtained. This covenant, by its express terms, was independent of the purchase of the lot. As such, it was not subsumed by appellant-seller’s decision to record the deed after receiving notice of the buyers’ intent to rescind.

The trial court found that a period of six months was a reasonable period within which to expect a response with respect to the buyers’ eligibility for a construction loan. We have no basis for disputing this finding; and, therefore, we accept it. After the expiration of that period, the Ciavarros could properly exercise their contractual right to rescind the transaction.

Appellant also contends that the buyers’ “bank worksheet,” on which were stated the terms of the loan for which application was to be made, was parol evidence and should not have been received to alter the terms of the rescission clause. However, the supplemental agreement between the parties was incomplete; it did not contain the terms of the construction loan contemplated by the parties. Therefore, the “bank worksheet,” which contained the terms of the loan to be obtained, was properly received to aid the trial court in ascertaining the intent of the parties. See: In re Estate of Hall, 517 Pa. 115, 133, 535 A.2d 47, 55 (1987); CBS, Inc. v. Capital Cities Communications, Inc., 301 Pa.Super. 557, 570, 448 A.2d 48, 54 (1982). The trial court did not err when it found that even the delayed commitment by First Lenders Mortgage Services had failed to meet the mortgage commitment contemplated by the appellee-buyers and the appellant-seller.

The evidence in this case is clear. The buyers were people of limited means. They wanted to buy a vacation home in the Poconos and not merely a lot on which they could build at some unascertained future time. When it became apparent that the necessary mortgage to complete the transaction would not be forthcoming, they sought to rescind the transaction and recover the moneys already paid. This attempted rescission was resisted by the appellant-seller, which acted to protect its sale of the lot to the buyers. The trial court, which heard the evidence, rejected the seller’s defense and allowed the buyers to rescind. Although the facts were clouded by the seller’s handling of the transaction, we conclude that the trial court’s decision should not be disturbed. It is, therefore,

Affirmed.

      . Decker’s employment is not entirely clear. Although apparently an employee of Cost Control, she received commissions from both the developer and Preferred Builders.

      . The Ciavarros paid the sum of $9,450.00 to Martha Decker on October 31, 1987.

      . The trial court’s finding that the deed had not been recorded is contrary to the evidence. The Recorder of Deeds entered the deed at 2:33 p.m. on June 24, 1988.

      . The evidence was that an executed deed had not been delivered to the buyers until after they attempted to rescind because of the inability to obtain a mortgage. After a demand for rescission had been made, the seller then caused the deed to be recorded.


text:
    603 A.2d 583
    Mary E. STAHLI, Appellant, v. Robert WITTMAN, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1991.
    Filed Jan. 6, 1992.
    Reargument Denied March 20, 1992.

      Jason W. Manne, Pittsburgh, for appellant.
    David A. Whitney, Ridgway, for appellee.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   WIEAND, Judge:

Charles Stahli was born on September 3, 1974 to Pauline Stahli, who was then seventeen (17) years of age and unmarried. He has been cared for since birth by his maternal grandmother, Mary E. Stahli. On March 29, 1988, at the request of the Pennsylvania Department of Public Welfare, Mary Stahli filed an action for child support against Robert Wittman, whom she alleged to be the father of Charles. The issue of paternity was tried non-jury on February 1,1990, before the Court of Common Pleas of Elk County, which, on August 27, 1990, entered a finding in favor of the alleged father. Post-trial motions were denied, and the present appeal was filed on behalf of the maternal grandmother by the Department of Public Welfare. It contends that the trial court should have entered judgment n.o.v. in favor of the claimant.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict was improper. Mitzelfelt v. Kamrin, 526 Pa. 54, 61, 584 A.2d 888, 891 (1990); Atkins v. Urban Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989); Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987). A reviewing court must consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the verdict winner, in this case the defendant. Mitzelfelt v. Kamrin, supra; Atkins v. Urban Redevelopment Auth. of Pittsburgh, supra; Lira v. Albert Einstein Medical Center, supra; Vernon v. Stash, 367 Pa.Super. 36, 45-46, 532 A.2d 441, 445-446 (1987). Moreover, the factual findings of the trial judge, sitting without a jury, carry the same weight as a jury verdict, and the Superior Court is limited in its review to determining whether those findings are supported by competent evidence. Arcadia Co., Inc. v. Peles, 395 Pa.Super. 203, 208, 576 A.2d 1114, 1116 (1990); Pato v. Cernuska, 342 Pa.Super. 609, 612, 493 A.2d 758, 759 (1985); Jenks v. Avco Corp., 340 Pa.Super. 542, 490 A.2d 912 (1985). We accept the trial judge’s findings with respect to the credibility of witnesses and the weight to be accorded their testimony. Arcadia Co., Inc. v. Peles, supra; Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 114, 464 A.2d 1243, 1255 (1983), citing In Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980) and Commonwealth ex rel. Pruss v. Pruss, 236 Pa.Super. 247, 344 A.2d 509 (1975); Bigham v. Wenschhof, 295 Pa.Super. 146, 149, 441 A.2d 391, 392 (1982). It is not the province of the appellate court to find facts or substitute its judgment for that of the trial judge. Delahanty v. First Pennsylvania Bank, N.A., supra at 114, 464 A.2d at 1255, citing School District of City of Harrisburg v. Pa. Interscholastic Athletic Ass’n., 453 Pa. 495, 499, 309 A.2d 353, 356 (1973). See also: Hanna v. Key Computer Systems, Inc., 386 Pa.Super. 8, 12, 562 A.2d 327, 329 (1989), allocatur denied, 524 Pa. 628, 574 A.2d 69 (1989). The test is not whether the appellate court would have reached the same result on the evidence presented but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could reasonably have reached its conclusion.

The burden was on the appellant-claimant to prove defendant’s paternity by a fair preponderance of the evidence. Tyler v. King, 344 Pa.Super. 78, 96, 496 A.2d 16, 25 (1985); 23 Pa.C.S. § 4343(a). The testimony relied upon by the claimant to prove paternity, in addition to her own, was elicited from Pauline Stahli, the child’s mother. This testimony the trial court rejected as being incredible. In addition, however, the claimant offered the results of red blood cell and HLA testing performed on the child, his mother and the defendant. The written laboratory test which, by stipulation, was received without explanation by expert testimony showed that defendant’s paternity could not be excluded and that there existed a 99.99% probability that he was the father. Appellant argues that this evidence entitled the claimant to a judgment n.o.v.

In Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986), an action to determine paternity, the jury had been presented with conflicting testimony and the results of red blood cell and HLA tests. These tests established a 99.99% probability that the defendant was the biological father. The jury, nevertheless, returned a verdict for the defendant. The trial court, en banc, held that the verdict was against the weight of the evidence and granted a new trial. The Superior Court affirmed. The Supreme Court held that the award of a new trial was error. The Court reasoned:

The court en banc’s reassessment of credibility was obviously influenced by the weight it placed upon the opinion of appellee’s expert witness (99.99% probability that appellant was the father), since that court found the award of a new trial was imperative “in light of the strong scientific evidence supporting the [appellee’s] claim and the lack of credible testimony to the contrary____” Lower court slip op. at 3. It was improper for the court to elevate the opinion of the expert witness to such lofty heights in light of the jury’s finding that appellant’s and his witness’ testimony were credible. As this Court stated in Tinicum Real Estate Holding Co. v. Commonwealth Department of Transportation, 480 Pa. 220, 232, 389 A.2d 1034, 1040 (1978), “in determining the facts the jury has the right to believe all, some of, or none of the experts’ testimony. Furthermore, it was the jury’s duty to consider all of the facts and circumstances established by the trial evidence____”
The Superior Court has had prior occasions to consider the reliability and probative value of HLA tests, and has held them to be admissible in a paternity action not only to disprove paternity but as affirmative evidence to prove paternity. See e.g., Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983); Miller v. Kriner, 341 Pa.Super. 293, 491 A.2d 270 (1985); Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984). However, the Superior Court has held that, in line with the general rule in this Commonwealth that expert opinion testimony is not conclusive and must be considered in conjunction with all of the evidence introduced at trial, HLA tests are not conclusive of paternity. Connell v. Connell, supra, 329 Pa.Super. at 477 A.2d 874-75. In Turek v. Hardy, supra, that court stated: “We emphasize, however that our holding is limited to the conclusion that HLA blood test results may be introduced as some evidence of paternity. We do not hold that this evidence is conclusive.” 312 Pa.Super. 158, 458 A.2d at 565. We approve of the Superior Court’s determinations that HLA blood tests are not conclusive evidence of paternity.

Id. 511 Pa. at 425-427, 515 A.2d at 529 (footnotes omitted). We conclude, in reliance on this opinion, that the trial court did not err when it denied appellant’s motion for judgment n.o.v.

Appellant argues that, pursuant to a 1989 amendment to the Domestic Relations Code at 23 Pa.C.S. § 4343(c)(2), the results of blood tests must be considered prima facie evidence of paternity. Because the defendantappellee did not testify, she suggests, the court should have found paternity. However, appellant misreads the statute. Section 4343(c)(2) states that, “Genetic test results shall be considered prima facie evidence of paternity.” (emphasis added). The trial court in the instant case did not have genetic test results to consider.

Genetic tests differ significantly from the blood cell antigen typing performed in the instant case. Genetic testing provides direct evidence of the extent to which an alleged father and child actually share genetic material. See: American Medical Association, Medical Dictionary, pp. 774-775 (Random House, 1989). From the results of genetic tests, adequately and accurately performed, it is possible to determine that a particular man did in fact father a particular child.

An affirmative finding of paternity with the same certainty cannot be obtained from blood cell antigen tests, such as were performed in the instant case. Typing red and white blood cell antigens reveals the extent to which an alleged father and child share selected cellular, biochemical properties. The results of such tests provide circumstantial evidence of genetic similarity. From the results of blood cell antigen tests it is sometimes possible to deduce, with a high degree of reliability, that an alleged father is not the biological father. See: 42 Pa.C.S. § 6136; Tyler v. King, supra at 86, 496 A.2d at 20 (1985), citing Hummel v. Smith, 301 Pa.Super. 276, 286-287, 447 A.2d 965, 970 (1982) (Beck, J., concurring). It is never possible from the same tests, however, to deduce with the same certainty that a particular man fathered a particular child. See: Smith v. Shaffer, supra, 511 Pa. at 426, 515 A.2d at 529, citing Connell v. Connell, 329 Pa.Super. 1, 7, 477 A.2d 872, 874-875 (1984). When blood cell typing fails to exclude paternity, a statistical calculation can be made to estimate the likelihood of paternity.

This calculation entails the use of a probability formula known as the “Essen-Moller” version of the “Bayes’ Theorem.” A simplified version of this formula may be summarized as follows: The ratio of the likelihood that the accused contributed certain genetic characteristics identified in the child, to the likelihood that one other “random man” contributed them. The “random man” variable is derived from the estimated frequencies of the particular characteristics in the relevant population. The ratio yielded by the Bayes’ formula, called the “paternity index,” is converted into a percentage value, “the likelihood of paternity,” which is then presented to the trier of facts.

Case Comment, Human Leukocyte Antigen Test Results Are Admissible in Paternity Cases to Show the Likelihood of Paternity. Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), 88 DICK.L.REV. 565, 567-69 (1984) (footnotes omitted).

Olson v. Dietz, 347 Pa.Super. 1, 5-6, 500 A.2d 125, 127 (1985). Even where this calculation yields a high probability of paternity, there nevertheless exists in the population of men having the same racial-ethnic background a number of men who, upon testing, will yield the same or similar results.

Blood cell typing provides some evidence from which a factfinder may make an affirmative finding of paternity. Olson v. Dietz, supra, 347 Pa.Superior Ct. at 5, 500 A.2d at 127; Turek v. Hardy, 312 Pa.Super. 158, 163, 458 A.2d 562, 564 (1983). However, the result is not prima facie evidence of paternity. Before the result of a blood test becomes probative of affirmative paternity, the trier of fact must be able to conclude that the mother and alleged father engaged in the reproductive act at a relevant time. See: Olson v. Dietz, supra, 347 Pa.Superior Ct. at 8, 500 A.2d at 129. Blood test results are not a substitute for this threshold determination. In the instant case, the trial court rejected testimony that the defendant had had sexual relations with the child’s mother at a relevant time. Therefore, the blood test results alone did not provide the trial court with conclusive, or even prima facie, evidence that appellee was Charles’ father.

Affirmed.

      . At the time of trial, Pauline Stahli resided in New York City with six other children to whom she had given birth.

      . In the interim, the complaint had been forwarded to McKean County, where Wittman was believed to reside, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), 23 Pa.C.S. § 4501 et seq. That court dismissed the action on the basis that the maternal grandmother lacked standing under RURESA to pursue an action against a defendant whose paternity had not previously been determined. The correctness of that ruling is not now before this Court and with respect thereto we express no opinion. We observe, however, that the court in McKean County did not determine the substantive issue of paternity, and its order, therefore, is not res judicata with respect to the issue heard by the court in Elk County.


author: ROWLEY, President Judge:

text:
    603 A.2d 587
    NIKOLE, INC. v. John J. KLINGER and Marguerite Klinger. Appeal of Marguerite KLINGER, individually and as administratrix of the Estate of John J. Klinger, deceased. John J. KLINGER and Marguerite Klinger v. NIKOLE, INC. and Dennis Sakelson. Appeal of Marguerite KLINGER, individually and as administratrix of the Estate of John J. Klinger, deceased.
    Superior Court of Pennsylvania.
    Argued May 8, 1991.
    Filed Jan. 22, 1992.
    Reargument Denied March 16, 1992.

      Mark Charleston, Philadelphia, for appellant.
    Donald A. Semisch, Willow Grove, for appellees.
    Before ROWLEY, President Judge, and GRILLO and JOHNSON, JJ.
   ROWLEY, President Judge:

In these consolidated appeals by Marguerite Klinger, individually and as administratrix of the estate of her deceased husband, John Klinger, from judgments entered in favor of Nikole, Inc., and Dennis Sakelson, president of Nikole, Inc., in three suits between the parties, we are called upon to determine the respective rights and obligations of the parties under a lease-purchase agreement for real estate, and a restaurant and bar.

Appellee Dennis Sakelson is the president of appellee Nikole, Inc. (Nikole). On November 28, 1979, John and Marguerite Klinger (the Klingers) entered into a Lease-Purchase Agreement (Agreement) with Nikole for two parcels of property owned by Nikole and located at 228 and 230 North York Road in Hatboro, Pennsylvania, on which a restaurant and bar were operated. Under the terms of the Agreement, the Klingers were to pay Nikole a $15,000 deposit and 120 monthly payments of $1,124 each which included principal and interest. The Klingers were also to pay taxes, insurance, and sewer rentals on the property. Under the terms of the Agreement, once the Klingers made 120 monthly payments, or prepaid the balance due, Nikole was to convey to the Klingers a fee simple title to the premises. In July, 1980, the Klingers took possession of the property and began making the monthly payments.

Bell Savings and Loan Association (Bell) held a blanket first mortgage on the two parcels at issue in the present case and on another parcel of property owned by Nikole located at 232 North York Road. William Pfulb held a blanket second mortgage on the same three properties. On November 1, 1985, a Sheriffs Sale notice was placed on the property at issue in the present case due to Nikole’s default on its mortgage payments to Bell. The Klingers stopped making their monthly payments at that time. Before the Sheriff’s Sale took place, however, Mr. Klinger’s brother-in-law, Umberto Gagliardi, paid Bell the balance due on the mortgage and took an assignment of the mortgage. On November 25, 1985, Nikole’s counsel sent a letter to the Klingers’ counsel advising them that Nikole would not pay any further sums on the mortgages held by Mr. Gagliardi and Mr. Pfulb.

Mr. Sakelson, as Nikole’s president, and the Klingers then attempted to reach a settlement concerning their respective rights and obligations under the Lease-Purchase Agreement. Pursuant to the proposed settlement agreement, Nikole was to convey to the Klingers the properties located at 228, 230, and 232 North York Road and the Klingers were to assume both the first and second mortgages on these parcels. The proposed settlement agreement was subject to the Klingers being able to obtain financing in a specified amount. In addition, during the period in which Mr. Sakelson and the Klingers were attempting to reach a settlement, the parties agreed that the Klingers were not obligated to make their monthly payments under the Lease-Purchase Agreement and Nikole was not obligated to make the payments due under the mortgage held by Mr. Gagliardi. They also agreed that if the attempt at settlement was unsuccessful, “all rights, obligations and claims that either party may have previously had against the other shall remain in full force and effect____”

The attempts to reach a settlement were unsuccessful and on October 17, 1986, the Klingers filed an action in the trial court at docket number 86-15504 against Nikole, Mr. Sakelson, and his wife, Jeanne. In Count I, the Klingers alleged a cause of action for breach of contract on the part of Nikole and Mr. and Mrs. Sakelson. In Count II, the Klingers alleged various wrongs on the part of Mr. Sakelson with respect to Nikole, including diversion of corporate funds for his personal use. In their complaint, the Klingers demanded $47,871.89, the amount they had paid to Nikole under the Lease-Purchase Agreement, plus the cost of relocating their business and punitive damages.

On the same day, Nikole, averring a default in payments due from the Klingers under the Lease-Purchase Agreement, filed a complaint in ejectment at docket number 86-15568 with confession of judgment for possession of the premises. On December 8, 1986, Nikole filed a second complaint for money damages with a confession of judgment at docket number 86-17984. In its second complaint, Nikole alleged that the Klingers had failed to make their monthly payments under the Lease Purchase Agreement and demanded $29,014.10, the balance of the monthly payments due plus attorney fees.

In the meantime, Nikole refinanced its mortgage indebtedness and cured its mortgage defaults. The Klingers then amended their complaint to include a request for specific performance as an alternate to the money damages originally requested.

The Klingers filed petitions to open the judgments entered by confession for ejectment and for money damages. The Klingers’ petitions were granted and they began paying their monthly payments due under the Agreement into an escrow account beginning with the November, 1986 payment. Subsequently, Mr. Klinger died and Mrs. Klinger stopped making the payments into escrow. The last monthly payment made was the March, 1988 payment.

The three cases in the trial court were consolidated for trial before the court without a jury. At the close of the Klingers’ case on liability, the trial court granted Nikole’s motion for a directed verdict. After Nikole presented its case, the Klingers orally made a motion for a compulsory nonsuit which was denied. Finding that the Klingers breached the Agreement by failing to make their monthly payments since November 1,1985 (the day the property was posted for Sheriffs Sale), the trial court entered a verdict in favor of Nikole for (1) $75,316.80 (86-17984), which was the sum of the monthly payments provided for by the Agreement for the forty-five months that the Klingers were in possession of the property without making payments to Nikole, and (2) possession of the property (86-15568). After final judgments were entered, Klingers filed these timely appeals.

On appeal, appellant raises the following allegations of trial court error:

A. The trial court abused its discretion in denying appellant’s motion for a continuance made on the morning of the first day of trial.
B. The trial court erred in admitting into evidence copies of checks dated October 4, 1985, which were written by John Klinger and made payable to Nikole, Inc. and in determining that those checks constituted a default by the Klingers in the terms of the Lease Purchase Agreement.
C. The trial court erred in refusing to admit into evidence a copy of certain portions of a written agreement entered into between the parties on July 7, 1986, as they contain admissions against interest made by Nikole, Inc.
D. The trial court erred in denying the Klingers’ motion for a compulsory nonsuit in Nikole's suit against the Klingers.
E. The trial court erred in granting Nikole’s motion for a directed verdict in its favor in the Klingers’ suit against Nikole and Dennis Sakelson.

After considering these issues, we affirm the judgment insofar as it relates to trial court docket numbers 86-15504 and 86-15568, and we reverse the judgment insofar as it relates to trial court docket number 86-17984. We remand for further proceedings in accordance with this opinion.

I. Continuance

Appellant contends that the trial court erred in denying her motion for a continuance made on the first day of trial after counsel for the Klingers was informed that Mr. Sakelson would not be present at the trial. Klingers’ counsel had employed the services of Best Legal Services to serve a subpoena on Mr. Sakelson for his attendance at trial. However, the subpoena was served on Mr. Sakelson’s business partner rather than on Mr. Sakelson. Although counsel conceded that Mr. Sakelson was not properly served, he nonetheless requested a continuance, contending that Mr. Sakelson was an indispensable witness whose testimony was required to establish Nikole’s default. The trial court denied the request. Appellant argues that the trial court’s ruling constitutes reversible error.

“The trial court is vested with broad discretion in the determination of whether a request for a continuance should be granted and an appellate court should not disturb such a decision unless an abuse of that discretion is apparent.” Corbett v. Weisband, 380 Pa.Super. 292, 315-16, 551 A.2d 1059, 1071 (1989) (quoting Walasavage v. Marinelli, 334 Pa.Super. 396, 413, 483 A.2d 509, 518 (1984)), allocatur denied, 524 Pa. 607, 569 A.2d 1367 (1989), allocatur denied, 524 Pa. 620, 571 A.2d 383 (1989). After reviewing the record, we conclude that the trial court did not abuse its discretion in denying appellant’s motion for a continuance.

The Supreme Court of Pennsylvania has set forth the following standard to be followed when a party requests a continuance due to the absence of witnesses:

Such a continuance will be granted only where it is shown that their expected testimony is competent and material, and not merely cumulative or impeaching; that it is credible and would probably affect the result, that it probably can be obtained at a future trial, and that due diligence has been exercised to secure it for the trial, including efforts to subpoena the absent witnesses and to take their depositions.

Carey v. Philadelphia Transportation Company, 428 Pa. 321, 324, 237 A.2d 233, 235 (1968) (quoting 4 Standard Pennsylvania Practice 627). In the present case, appellant’s unsupported claims that Mr. Sakelson’s testimony would be competent and material is not sufficient to warrant a new trial. Furthermore, if Mr. Sakelson’s testimony was so vital to the Klingers’ case, they should have confirmed that the subpoena was properly served. We find no abuse of discretion in the trial court’s decision to deny appellant’s motion for a continuance.

II. Evidentiary Rulings

Appellant raises two allegations of trial court error regarding evidentiary rulings. First, appellant argues that the trial court erred in admitting into evidence copies of checks dated October 4, 1985, which were written by Mr. Klinger and made payable to Nikole, and in determining that those checks constituted a default by the Klingers under the terms of the Agreement. During the Klingers’ case against Nikole, counsel for Nikole, on cross-examination, questioned Mrs. Klinger about these checks. Both of the checks were dated October 4, 1985; however, one was deposited in October and one was deposited in November. Nikole’s counsel introduced these checks because they were returned for non-sufficient funds. Klingers’ counsel objected to the introduction of these checks because, in its complaint, Nikole alleged that the Klingers breached the Agreement as of November, 1985. Therefore, counsel argued, checks written in October, 1985 were irrelevant.

The trial court determined that the testimony concerning the check that was deposited in October, before the alleged breach, should be stricken, but the testimony concerning the check that was deposited in November, after the alleged breach, should not be stricken. Although the testimony concerning the second check was not stricken, the check was not admitted into evidence as counsel for Nikole decided that it was not crucial to his case. Moreover, although appellant contends that these checks influenced the trial court’s decision to render a verdict in favor of Nikole, there is nothing in the record to support this assertion. We find no error in the trial court’s rulings regarding these checks.

Appellant also contends that the trial court erred in refusing to admit into evidence a copy of certain portions of the proposed settlement agreement between the parties claiming that they contain admissions against interest made by Nikole.

Appellant attempted to introduce portions of the proposed settlement agreement between the parties alleging that they contained factual admissions made by Nikole. The trial court refused to admit any part of the agreement because it was executed in an attempt to settle the dispute. Appellant correctly cites Rochester Machine Corporation v. Mulach Steel Corporation, 498 Pa. 545, 449 A.2d 1366 (1982), for the proposition that, while an offer to compromise is not admissible in evidence as proof of liability, a distinct admission of fact which accompanies an offer to compromise is admissible. However, we are not convinced that the portions of the settlement agreement which appellant wished to admit constitute distinct admissions of fact.

In Rochester Machine, Rochester Machine Corporation, through its attorney, sent to Mulach Steel Corporation a letter which listed damages allegedly caused by Mulach. In response, Mulach, through its attorney, sent a letter consisting of an item by item response to each claim of damage. With respect to some of the items, Mulach responded, “Mulach accepts responsibility.” Under those circumstances, the court determined that “[t]he specific acceptance of responsibility for specific items of damages is fairly construed as a distinct admission.” Id., 498 Pa. at 552, 449 A.2d at 1369.

The statements at issue in the present case, on the other hand, were contained in “whereas clauses” in the settlement agreement. Specifically, these clauses stated the following:

WHEREAS, KLINGER has complied with all of the terms and provisions of said lease purchase agreement from its inception until approximately November of 1985, when KLINGER discontinued monthly payments to NIKOLE, INC. for the reasons set forth herein below; and, WHEREAS, NIKOLE, INC. defaulted in the terms and provisions of its mortgage agreement with BELL SAVINGS AND LOAN ASSOCIATION, resulting in proceedings instituted by BELL to expose premises 228-230-232 North York Road, Hatboro, Pennsylvania, to a Sheriffs Sale; and, ... WHEREAS, NIKOLE is in default on its payments to UMBERTO GAGLIARDI since November of 1985; and, WHEREAS, NIKOLE, INC. is also in default with respect to the mortgage held by WILLIAM PFULB; and, WHEREAS, both GAGLIARDI and PFULB have threatened to proceed with supplemental foreclosure proceedings in order to protect their respective interests____

In this situation, we do not agree with appellant that these statements were admissible as distinct factual admissions by Nikole. These statements were more in the nature of legal conclusions than factual admissions. Furthermore, the clauses contain some factual statements that are merely cumulative of other evidence in the record. Therefore, we conclude that the statements were properly excluded and their exclusion, even if improper, was harmless.

III. Nikole v. Klingers — Compulsory Nonsuit

Appellant also contends that the trial court erred in denying her motion for a compulsory nonsuit in Nikole’s suit against the Klingers. The Klingers had argued at trial that the failure of Nikole to pay the mortgages on the property and its subsequent letter stating that it would not make any more payments on the mortgages constituted a breach of the Agreement. In response, the trial court stated the following:

Assuming for the sake of argument that Nikole, Inc.’s letter in November, 1985 stating its intention to stop mortgage payments is an anticipatory repudiation of the agreement, the Klingers are not excused from their obligation to pay rent on the property. The Klingers, however, continued to remain in possession of the property until July of 1989 and complied with Judge Vogel’s Order to place monthly rents in an escrow account only until March of 1988. The Klingers have not provided the Court with any authority, and we do not believe that there is any, which entitles one party to treat the conduct of another party as a repudiation of the contract while continuing to receive the benefits under it, in this case remaining in possession and operating a bar and restaurant.

Trial Court Opinion 7/11/90 at 6-7 (citations to record omitted). We agree that the Klingers were not entitled to remain in possession of the property without compensating Nikole. However, the trial court failed to give effect to Nikole’s anticipatory repudiation. After reviewing the record, we conclude that Nikole repudiated the Agreement.

It is undisputed that Nikole failed to pay its mortgages. Nikole contends that, because the Klingers were only tenants and did not lose possession of the property when Nikole failed to make its mortgage payments, it did not breach the Agreement. However, the Agreement was not merely a lease, but was a lease purchase agreement. “[I]n construing a contract, each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” Marcinak v. S.E. Greene School District, 375 Pa.Super. 486, 491, 544 A.2d 1025, 1027 (1988). Although the monthly payments were termed “rent” and Nikole was designated as lessor while the Klingers were designated as lessees in one part of the Agreement, the Agreement also provided for “the price to be paid”, a $15,000 down payment, and “monthly installments of principal and interest”. In addition, Nikole was designated as “Seller” and the Klingers as “Buyer”. For these reasons, we disagree with Nikole that the Klingers were mere tenants and that the Agreement was not breached by it because the Klingers had remained in possession of the property. The Klingers had an equitable interest in the property which Nikole jeopardized by failing to pay its mortgages.

Although Nikole’s obligation to pay its mortgages was not directly addressed in the Agreement, the Agreement did provide that, when the Klingers had made 120 payments or prepaid the balance due, Nikole would convey good title to them. Accordingly, Nikole was obligated to retain the ability to convey good title to the Klingers. Failing to pay its mortgages, with a resulting foreclosure, clearly would jeopardize Nikole’s ability to convey the good title as it was obligated to do. In fact, the Sheriffs Sale was avoided through the Klingers’ efforts rather than through any action on the part of Nikole when Mr. Klinger arranged for Mr. Gagliardi to take an assignment of the Bell mortgage. Klingers’ counsel, representing Mr. Gagliardi, then sent a letter dated November 21, 1985 to Nikole informing Nikole that its mortgage payments would thereafter be made to Mr. Gagliardi. On November 25, 1985, Nikole’s counsel responded that “Nikole, Inc. will not pay any further sums on the property. It has lost money for seven years and cannot continue.” This statement, in light of the fact that Nikole had defaulted in its mortgage payments with the resulting threat of a Sheriffs Sale, is “sufficiently positive to be reasonably interpreted to mean that [Nikole would] not ... perform.” Oak Ridge Construction Company v. Tolley, 351 Pa.Super. 32, 38, 504 A.2d 1343, 1346 (1985) (quoting Restatement (Second) of Contracts § 250 comment b.) Therefore, Nikole repudiated the Agreement and was not entitled to recover damages under that Agreement. See Ott v. Buehler, 373 Pa.Super. 515, 518, 541 A.2d 1143, 1145 (1988) (“[A] party who has materially breached a contract cannot complain if the other party refuses to perform his obligations under the contract.”); Hampton v. Minton, 785 S.W.2d 854, 857 (Tex.App. — Austin, 1990) (“[W]hen a party to a contract seeks to enforce the agreement or to recover damages for breach of the agreement, that party must prove that he has performed all of his own obligations under the contract.”); Carr v. Norstok Building Systems, 767 S.W.2d 936, 939 (Tex.App. — Beaumont, 1989) (“[A] party to a contract cannot enforce it or recover damages for its breach unless that party shows that he or she has performed the obligations imposed upon him.”). Accordingly, the trial court erred in denying appellant’s motion for a compulsory nonsuit in Nikole’s suit against the Klingers.

IV. Klingers v. Nikole

Appellant argues that the trial court erred in granting Nikole’s motion for a directed verdict in the Klingers’ suit against Nikole. Appellant makes two arguments to support this allegation of error. First, appellant contends that the trial court erred “jurisdictionally” in granting Nikole’s motion for a directed verdict because the trial judge was sitting without a jury. Appellees correctly assert that no objection to this procedure was made at trial, therefore, the issue was waived.

In addition, we find this claim to be without merit. Pa.R.C.P. 226 states, “At the close of all evidence, the trial judge may direct a verdict upon the oral or written motion of any party.” Pa.R.C.P. 1038 states, “[T]he trial of an action by a judge sitting without a jury shall be conducted as nearly as may be as a trial by jury is conducted and the parties shall have like rights and privileges____” Clearly, neither rule disallows a directed verdict in a nonjury trial.

Moreover, appellant has not demonstrated that she was prejudiced by this procedure. Her case on liability was completed when the motion was granted. The outcome of the case would have been the same if the trial court had denied Nikole’s motion, Nikole had rested, and the court then entered a verdict in Nikole’s favor. Accordingly, we conclude that the trial court did not commit reversible error by granting Nikole’s motion for a directed verdict.

In addition, appellant contends that the trial court erred as a matter of substantive law in granting Nikole’s motion for a directed verdict. For the following reasons, we disagree.

Once Nikole repudiated the Agreement, as discussed above, the Klingers could have either accepted the rescission of the contract and sought restitution or brought an action for damages under the contract. See Durflinger v. Statesman Life Insurance Company, 100 Or.App. 581, 787 P.2d 892, 894 (1990); see also Eklund v. Koenig and Associates, Inc., 153 Wis.2d 374, 451 N.W.2d 150, 153 (1990). Although the Klingers treated the contract as breached by discontinuing their monthly payments and by eventually filing a complaint against Nikole for breach of contract, they continued to reap the benefits of the Agreement by remaining in possession of the property. In effect, the Klingers attempted to treat the Agreement as breached for one purpose while treating it as in effect for another purpose. By remaining in possession without compensating Nikole, the Klingers failed to perform their own obligations under the Agreement and were not entitled to collect damages. See Ott, supra; Hampton, supra; Carr, supra. Therefore, the trial court did not err in granting Nikole’s motion for a directed verdict in its favor in the Klingers’ suit against Nikole and Mr. Sakelson.

CONCLUSION

For the above reasons, we conclude that neither party was entitled to collect damages under the Agreement. “[Wjhen parties to a contract each commit a material breach, the law will give relief to neither.” Cottman Transmission Systems, Inc. v. Dubinsky, 550 F.Supp. 133 (W.D.Pa.1982). However, “[i]f both contracting parties materially breach the contract, recovery, by either party, is limited to that benefit which is in excess of the loss said party has caused by his own breach.” In re Spagnol Enterprises, Inc., 81 B.R. 337, 353 (W.D.Pa.1987). See also Lancellotti v. Thomas, 341 Pa.Super. 1, 491 A.2d 117 (1985). Because the Agreement was not successfully completed, Nikole is, as the trial court ordered, entitled to possession of the property. Furthermore, appellant did remain in possession of Nikole’s property from 1985 through 1989 and Nikole should be compensated at the fair rental value for the Klingers' use of its property. Accordingly, we remand for a determination of the recovery, if any, due each party and the entry of an appropriate order.

The final judgment is affirmed as to docket numbers 86-15568 and 86-15504 and reversed as to docket number 86-17984 and the case is remanded for further proceedings. Jurisdiction is relinquished.

      . Neither Bell, Mr. Pfulb, nor Mr. Gagliardi are parties to these suits or appeals.

      . Pursuant to preliminary objections, Count I of the complaint was stricken as to Mr. and Mrs. Sakelson in their individual capacities. Count II was also stricken as to Mrs. Sakelson only. She is no longer a party to this suit or appeal.

      . The Klingers are no longer in possession of the property and the property has been sold by Nikole.

      . Appellant also raises the following three issues: the verdict was against the evidence, the verdict was against the weight of the evidence, and the verdict was against the law. Appellant sets forth no arguments in support of these issues, but, rather, directs us to her arguments in support of the above-mentioned issues. We will therefore not address these issues separately. In addition, appellant raises an issue concerning the trial court’s computation of damages. Because of our disposition of this case, we need not consider this final issue.

      . In Rochester Machine, the Supreme Court initially decided that the document which contained the admissions was not an offer to compromise. Therefore, the discussion relied upon by appellant was not necessary to the Court’s disposition of the case.

      . Although the trial judge stated in his opinion that the statements were inadmissible because they were contained in a settlement agreement, at trial he stated that a whereas clause is not a factual admission. Notes of Testimony 7/20/89 at 54. Moreover, the Superior Court may affirm for a reason other than that applied by the trial court. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987).

      . Also see part III, post.

      . Once the trial court determined that Nikole was not liable, the Klingers did not pursue their claim against Mr. Sakelson.


author: MONTEMURO, Judge:

text:
    603 A.2d 595
    John G. FREEZE, Jr., Administrator of the Estate of John Goss Freeze, Deceased, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY. John G. FREEZE, Jr., Administrator of the Estate of John Goss Freeze, Deceased, v. DONEGAL MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Feb. 18, 1992.

      Pamela G. Shuman, Harrisburg, for appellant (at 699) and appellee (at 727).
    Robert E. Kelly, Jr., Harrisburg, for appellant (at 727) and appellee (at 699).
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

Before us is a dispute emanating out of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-.701 (repealed 1984). Specifically, this is a consolidated appeal from an order awarding $8,850.00 in attorneys’ fees to appellant’s counsel for recovering interest due on work loss benefits. Appellant has appealed this award and asks that we determine: (1) whether the trial court erred in failing to award counsel fees for the entire fourteen year period of representation; (2) whether the trial court erred in its interpretation of the No-fault Act; and, (3) whether the trial court erred in calculating a reasonable rate of compensation for counsel. Appellee has also appealed from the award of attorneys’ fees arguing that: (1) appellant is not entitled to an award of attorneys’ fees; and, (2) that this court does not have jurisdiction to hear appellant’s appeal with regard to section 1009.107(3) of the No-fault Act. We affirm the award of counsel fees, but on a different basis than that relied on by the trial court.

The relevant facts of this never-ending dispute are as follows. On January 14, 1977, John G. Freeze, III, an eleven year old child, was killed by an automobile while sled riding near his home. At the time of his death, the decedent was insured under a no-fault automobile insurance policy issued by appellee, Donegal Mutual Insurance Company (Donegal).

Following the death of his son, John G. Freeze, Jr., the nominal appellant, was appointed administrator of his son’s estate. In his capacity as administrator, appellant submitted an application for payment of no-fault benefits to Donegal. Subsequent to receipt of appellant’s application, Donegal was contacted by appellant’s counsel, Angino & Rovner (Angino), who requested that payment of postmortem work loss benefits be made to decedent's estate. Five days later, Donegal denied the claim for work loss benefits.

Appellant then brought suit seeking to recover work loss benefits for the minor-decedent’s estate. Donegal filed preliminary objections in the nature of a demurrer asserting that under the No-fault Act, the estate of a minor who has never entered the work force is not entitled to work loss benefits. The York County Court of Common Pleas agreed and sustained the demurrer. Appellant then took an appeal to this court, wherein we reversed the trial court’s decision and held that the estate of a never-employed minor is entitled to work loss benefits under the No-fault Act. Our decision was later affirmed by the Pennsylvania Supreme Court.

Following the Supreme Court’s decision, Donegal forwarded a check to Angino in the sum of $27,600.00. This amount represented $15,000 in work loss benefits plus interest of $12,600 calculated at the statutory rate of eighteen percent. See 40 P.S. § 1009.106(a)(2). Appellant returned this check to Donegal contending that it was entitled to stacked work loss benefits of $30,000 plus interest from the date of the initial application for benefits. On these issues, the parties remained deadlocked.

Eventually, appellant abandoned its claim for stacked benefits in light of our Supreme Court’s decision in Antonovich v. Allstate Ins. Co., 507 Pa. 68, 488 A.2d 571 (1985). Now, it would appear that the only issue remaining for resolution is the proper calculation of interest. However, this was not to be.

On June 8, 1987, appellant filed a motion for summary judgement requesting interest calculated from February 23, 1977, plus attorneys’ fees pursuant to 40 P.S. § 1009.107(1) and (3). By its order of April 29, 1988, the trial court granted the motion and ordered Donegal to pay appellant the $15,000 basic work loss benefit plus interest calculated from June of 1977. The order also required Donegal to pay Angino reasonable attorneys’ fees and expenses pursuant to Section 1009.107(1), but “only as they relate to the particular sum awarded.” (T.C.O. at 5). If the parties were unable to agree as to the amount of fees and expenses, the order stated that the trial court would hold a hearing and determine the amount of fees to be paid.

In compliance with the above order, Donegal tendered a check to appellant in the amount of $44,475 representing payment of the work loss benefit plus interest, but not appellant’s attorneys’ fees. Appellant accepted this sum and executed a release with Donegal.

Predictably, Donegal and Angino were unable to come to terms and the trial court scheduled a hearing to put the attorneys’ fee issue to rest. Prior to the hearing, Angino filed an affidavit with the trial court detailing the credentials of Attorney Angino, the hours spent resolving the instant dispute and requesting attorneys’ fees in the amount of $348,152. A hearing was then held before the Honorable Joseph E. Erb.

Following the hearing, Judge Erb entered an opinion and order awarding $8,850.00 to Angino as a reasonable fee for resolving the dispute over the amount of interest owed to appellant. In making this award, the trial court determined that Angino had spent forty-four and a quarter hours resolving this issue and that it was entitled to a reasonable fee calculated at the rate of $200 per hour. Dissatisfied with this determination, both parties have taken timely appeals.

Before enacting the No-fault Act, our General Assembly studied the then existing motor vehicle accident insurance system and found:

(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents ... is essential to the humane and purposeful functioning of commerce;
(4) to avoid any undue burden on commerce ..., it is necessary and proper to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims;
(5) ... the present [fault based] system of motor vehicle . accident and insurance law ... is not such a low-cost, comprehensive, and fair system;
(6) careful studies, intensive hearings, and some State experiments have demonstrated a basic system of motor vehicle accident and insurance law which ... eliminates the need to determine fault ..., is such a low-cost, comprehensive system.

40 P.S. § 1009.102(a). Prompted by these findings, the General Assembly enacted a comprehensive scheme of no-fault motor vehicle insurance with the stated purpose of establishing “at [a] reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b).

Considering the extensive findings and the sound purpose to be attained, it is evident that recovery under the No-fault Act is to be had without turning to the judicial process, including retention of counsel. See 31 Pa.Code § 66.121. To ensure the prompt and adequate compensation of accident victims, the No-fault Act contains penal provisions which punish an insurance carrier who either delays paying no-fault benefits due or unreasonably denies a legitimate claim. 40 P.S. § 1009.107(1), (3).

Specifically, section 1009.107(1) provides that:

[i]f any overdue no-fault benefits are paid by the obligor after receipt by the obligor of notice of representation of a claimant in connection with a claim or action for the payment of no-fault benefits, a reasonable attorney’s fee (based on actual time expended) shall be paid by the obligor to such attorney. No part of the attorney’s fee for representing the claimant in connection with such claim or action for no-fault benefits shall be charged or deducted from benefits otherwise due to such claimant and no part of such benefits may be applied to such fee.

And, section 1009.107(3) provides that:

[i]f, in any action by a claimant to recover no-fault benefits from the 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.

The resolution of the instant dispute rests upon the proper interpretation of these penal provisions.

When we analyze and interpret a statute, we do so with the goal in mind of ascertaining and giving effect to the intent of the General Assembly. 1 Pa.C.S.A. § 1921(a). To aid us in this task, we are guided by the Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991, which requires that we construe a statute in such a manner as to give effect to all of its provisions. When we so construe a statute, we must follow the letter of the statute if its words are unambiguous, 1 Pa.C.S.A. § 1921(b), but when the words are not explicit, we must ascertain the General Assembly’s intent by looking to:

(1) The occasion and necessity of the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be obtained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S.A. § 1921(c).

Generally, we interpret an insurance statute liberally to effectuate its purpose. Antanovich v. Allstate Ins. Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985). However, when the statute contains penal provisions, such provisions must be strictly construed. Smith v. Harleysville Ins. Co., 275 Pa.Super. 246, 248, 418 A.2d 705, 706 (1980); 1 Pa.C.S.A. § 1928(b)(1). With these basic tenets in mind, we turn our attention to the No-fault Act.

Recovery of attorneys’ fees under section 1009.-107(1) is dependent upon an insured proving two things. First, that no-fault benefits are overdue and secondly, that the benefits were not paid until after the insurer receives notice that a claimant has retained legal representation. There is no dispute as to the interpretation of the second element. Rather, this conflict focuses, in part, upon the issue of when no-fault benefits are overdue.

Overdue benefits are defined as benefits which have not been paid within thirty days of receipt of “reasonable proof of the fact and the amount of loss sustained.” 40 P.S. § 1009.106(a)(2). Thus, it would appear that no-fault benefits are always and automatically overdue if not paid within thirty days. See Hayes v. Erie Ins. Exchange, 493 Pa. 150, 425 A.2d 419 (1981) (interest accrues on overdue benefits without regard as to whether the insurer had a good faith reason for denying the claim). However, we cannot stop our analysis here.

Section 1009.106(a)(5) provides that an insurance carrier who rejects a claim for no-fault benefits, must give written notice of the denial within thirty days from receipt of reasonable proof of loss. Although timely rejection of a claim does not toll the running of interest, it should preclude imposition of counsel fees under section 1009.107(1). In Lee v. Safeguard Mut. Ins. Co., 379 Pa.Super. 104, 549 A.2d 927 (1988), alloc. denied, 522 Pa. 596, 562 A.2d 320 (1989), we analyzed sections 1009.107(1) and 107(3) and found that section 1009.107(1) was intended to “ensure a fair system whereby promptness is encouraged and tardiness penalized.” Id., 379 Pa.Superior Ct. at 115, 549 A.2d at 932. Thus, we held that in order to ensure that promptness is rewarded and tardiness penalized, an insured is entitled to attorneys’ fees under section 1009.107(1) when the following factors coalesce:

(1) On a particular date, appellant provided reasonable proof of the fact of loss and amount of loss incurred;
(2) Appellant was not paid no-fault benefits by appellee prior to the filing of a notice of representation by appellant’s counsel;
(3) A notice of representation was filed when payments were overdue pursuant to section 106; and
(4) Appellee did not notify appellant within thirty days ‘after the receipt of reasonable proof of loss’ of any denial of benefits.

Id., 379 Pa.Superior Ct. at 118, 549 A.2d at 934. When any of these factors are absent, a claimant cannot successfully pursue a claim for counsel fees under section 1009.107(1). If we decide otherwise, we will render an entire provision of the No-fault Act mere surplusage. See Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 471, 445 A.2d 1222, 1226 (1982) (when construing a statute, courts must attempt to give effect to every word, thereby avoiding creation of surplusage in the statute); 1 Pa.C.S.A. §§ 1921(a) and 1922(2).

Section 1009.107(3) penalizes no-fault insurers for denying a claim without a reasonable foundation. If we interpret section 1009.107(1) as mandating the imposition of attorneys’ fees whenever benefits are overdue, section 1009.107(3) becomes meaningless. No longer would claimants look to section 1009.107(3) for recovery of benefits. Aggrieved claimants could recover their counsel fees by a mere showing of tardy payment. They would never have to prove unreasonable conduct on the part of the no-fault carrier. If the General Assembly intended such a result, they would not have enacted section 1009.107(3).

To give effect to section 1009.107(3), an insurer’s liability under section 1009.107(1) must come to an end at some definite point, and under the provisions of the No-fault Act it does. Because section 1009.106(a)(5) requires timely rejection of no-fault claims, it logically follows that timely rejection of a claim should terminate an insured’s liability under section 1009.107(1). Therefore, we hold that a no-fault insurance carrier’s potential liability under section 1009.107(1) ends upon timely rejection of a no-fault claim. Once such a rejection is made, claimants must look to section 1009.107(3) for recovery of counsel fees.

We are not alone in so interpreting the No-fault Act. The Pennsylvania Trial Lawyers Association has published a treatise entitled The Pennsylvania No-fault Motor Vehicle Insurance Act which analyzes and interprets the No-fault Act. We reviewed this publication to learn how the trial bar interpreted section 1009.107(1). During our review, we encountered the following passage:

Section 107(1) provides for obligor-paid attorney’s fees in circumstances in which the insurance carrier has simply not timely reacted to the presentation of a no-fault claim either by paying the benefits or advising the claimant or his counsel of the basis for denial of payment Again, whether the denial was reasonable or unreasonable is irrelevant to entitlement to attorneys fees if the basis for denial is not timely asserted.
Section 107(1) evidences a clear policy purpose that if by reason of an obligor’s failure to notify a claimant why he is not being paid the claimant is required to obtain counsel, he is entitled to a reasonable attorney’s fee as a matter of right based on the time and effort expended by counsel. Assuming timely notification is given, then the criterion for the award of attorney’s fees is tested under the standard set forth in Section 107(3).

L. Swartz, R. Angino & C. Shepard, The Pennsylvania No-Fault Motor Vehicle Insurance Act § 1:39.3.1 (Supp.1983) [hereinafter PA No-Fault] (emphasis added). We concur with their interpretation of section 1009.107(1).

In the instant case, the trial court purports to follow our decision in Lee, supra. However, it then awards attorneys’ fees pursuant to section 1009.107(1). We find that such an award cannot be made.

When we apply the facts of the instant case to the requisites for recovery under section 1009.107(1), it is readily apparent that attorneys’ fees cannot be awarded under this section. The record reveals that on May 19, 1977, Angino made a written claim for work loss benefits. Five days later, this claim was denied as required by section 1009.106(a)(5). By timely denial of the claim, Donegal forever cut-off its exposure to liability under section 1009.-107(1).

Angino also asserts that it is entitled to attorney’s fees under section 1009.107(3). Despite the trial court’s decision to the contrary, we agree.

Following our Supreme Court’s decision in Freeze, supra, appellant was entitled to payment of work loss benefits plus interest at eighteen percent. At this juncture, Donegal was not liable for counsel fees under section 1009.107(3) because its initial denial of the claim was based upon a reasonable foundation. See Rago v. State Farm Mut. Auto. Ins. Co., 355 Pa.Super. 207, 214-15, 513 A.2d 391, 395 (1986) (until an appellate court construes the No-fault act to determine if an insurance carrier is liable to pay certain benefits, the lack of guidance from the courts is a reasonable basis for denying a claim for such benefits). However, its actions following the Freeze decision justify the imposition of such fees.

Following the Supreme Court’s decision in this case, Donegal attempted to pay the work loss benefits plus interest. However, the parties were unable to agree upon the amount of interest due. Appellant claimed that interest should accrue beginning thirty days after the initial application for benefits was filed on January 24, 1977 or at the latest, thirty days after the claim for work loss benefits was made on May 19, 1977. Donegal claimed that neither date was the correct starting point and asserted that interest did not begin to run until appellant submitted actuarial information on April 18, 1979. The trial court found that Done-gal’s position was reasonable and therefore, Angino was not entitled to counsel fees under section 1009.107(3). (T.C.O. at 3).

Donegal’s claim that interest did not accrue until after it received actuarial information on the deceased is untenable. As we discussed supra, the No-fault Act was enacted to make victims of motor vehicle accidents whole without resort to the judicial process, including retention of counsel. By requiring its insured to obtain and submit actuarial information, Donegal attempted to circumvent our legislature’s intent. We do not believe that the average citizen of this Commonwealth can readily obtain actuarial information, unless they retain legal representation. In fact, Done-gal had all the information necessary to pay this claim before it received the actuarial information. (N.T. 5/31/ 1989 at 13-20). Therefore, its refusal to pay interest from June of 1977 was baseless and Angino is entitled to a reasonable fee for recovering the additional interest.

The trial court found that Angino had expended forty-four and and a quarter hours in recovering the additional interest from Donegal. (T.C.O. at 6). We find this determination to be adequately supported by the record and hold that Angino is entitled to a reasonable fee for these hours. However, Angino is not entitled to counsel fees under section 1009.107(3) for the time spent prior to our Supreme Court’s resolution of the work loss issue, nor for the time expended pursuing its request for attorneys’ fees.

Finally, Angino argues that it is entitled to a fee in excess of the $200.00 per hour awarded by the trial court. We find that $200.00 per hour is an adequate rate of compensation for resolving the interest issue.

The determination of the reasonableness of attorneys’ fees is a matter relegated to the sound discretion of the trial judge. Ware v. United States Fidelity & Guar. Co., 395 Pa.Super. 501, 509, 577 A.2d 902, 905 (1990). On appeal, we will only reverse the trial judge if we find an abuse of discretion or an error of law. Gilmore v. Dondero, 399 Pa.Super. 599, 605, 582 A.2d 1106, 1108 (1990); Romano v. Lubin, 365 Pa.Super. 627, 630, 530 A.2d 487, 488 (1987). We will find an abuse of discretion if the award of attorneys’ fees is based on erroneous factual findings or irrelevant legal factors. Dondero, supra.

In determining whether counsel fees are reasonable, a trial court must consider:

... the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was ‘created’ by the attorney; the professional skill and standing of the attorney in his profession; the result he was able to obtain; ... and, very importantly, the amount of money or the value of property in question.

In re Estate of LaRocca, 431 Pa. 542, 546, 246 A.2d 337, 339 (1968). After reviewing the record, we find that the trial court awarded a fee which satisfied the factors enunciated in LaRocca.

The trial court had before it a request for $348,152 in counsel fees which appears to be based on an hourly rate of between $500 and $2,000. Such a rate of compensation is unthinkable in this case. Counsel fees were awarded in this case for recovering an additional $16,875 of interest for appellant. The trial court found that this required the expenditure of approximately forty-four hours of legal representation and the record indicates that that amount of documentation generated in resolving this issue was minimal. Recovery of the interest due appellant does not involve a complicated or novel legal issue. In light of these facts, an attorneys’ fee of $200.00 per hour is reasonable.

We can understand Angino’s wish to be compensated for forging a new theory of recovery under the No-fault Act. However, Angino cannot look to the penal provision of this act for such compensation. Counsel knew when it took this case that the amount of money recoverable for its client ranged between $15,000.00 and $30,000.00, plus interest. Counsel was also aware that its ability to recoup attorneys’ fees from Donegal was dependent upon whether Donegal’s conduct was so egregious as to warrant imposition of the penal provisions of the No-fault Act. Angino understood these risks when it undertook this case and our decision today should come as no surprise. See PA No-Fault, supra, at § 1:39.3.1.

Accordingly, we affirm the award of counsel fees, but base our affirmance on section 1009.107(3) of the No-fault Act.

      . Freeze v. Donegal Mut. Ins. Co., 301 Pa.Super. 344, 447 A.2d 999 (1982).

      . Freeze v. Donegal Mut. Ins. Co., 504 Pa. 218, 470 A.2d 958 (1983).

      . T.C.O. denotes Trial Court Opinion of April 29, 1988.

      . Donegal took an appeal from this order which we quashed as an impermissible appeal from an interlocutory order. Freeze v. Donegal Mut. Ins. Co., 366 Harrisburg 1988 (June 8, 1988).

      . Angino has retained forty percent of this sum pursuant to a contingency fee agreement it entered into with appellant.

      . Following adoption of the No-fault Act, the Insurance Department promulgated procedures governing the transition from the existing fault-based insurance system to no-fault. As part of this procedure, motor vehicle insurers were required to submit to their insureds an explanatory letter containing a brief description of the No-fault Act. 31 Pa.Code § 66.121(a)(2). To aid the insurance carriers in this task, the Insurance Department provided a specimen of an explanatory letter which provides, in part:
      [y]ou will not need a lawyer to collect your No-Fault benefits. If you are injured, (contact your insurance company or your insurance agent) to get claim forms from all related parties (you, your employer, the hospital, etc.). Lawsuits for non-economic loss, such as ‘pain and suffering’ will be allowed [under a limited set of circumstances].
      31 Pa.Code § 66.121(b)C.

      . We reach this decision after giving due consideration to our Supreme Court’s decision in Hayes, supra. In Hayes, the issue before the court was whether overdue benefits bore interest at eighteen percent when a no-fault carrier denies a claim in good faith or with reasonable foundation. There, the Supreme Court found that to make the insured whole, the legislature intended for interest to accumulate without regard as to why the benefits were overdue. Id., 493 Pa. at 154-5, 425 A.2d at 421. In so finding, the Hayes court noted that the imposition of interest was not penal, but "a reasonable incentive for the prompt settlement of just demands.” Id., 493 Pa. at 160, 425 A.2d at 424. Thus, that decision is inapposite to the instant dispute because here we must interpret the provisions of the No-fault Act which are obviously intended to punish offensive conduct.

      . Angino asserts that when our court set forth the four factors necessary for recovery under section 1009.107(1), we did not need to address the effect of timely denial of a claim; therefore, the fourth element stated in Lee is dicta and should not be followed by this court. We disagree.
      In Lee, the claimant sought attorneys’ fees under sections 1009.-107(1) and 107(3). The trial court denied the claim and an appeal was taken to this court, wherein the appellant argued that the trial court erred in failing to award attorneys’ fees. Before addressing the merits of the appeal, we analyzed the No-fault Act and set forth what we found to be the requirements for recovery under both sections. We then applied the facts of that particular case to the requirements and found that recovery could not be had because claimant had failed to provide reasonable proof of loss. Id. 379 Pa.Super. at 118, 549 A.2d at 934.
      Although the facts presented to us in Lee did not require us to determine if appellant satisfied all four prerequisites, we were required to analyze the No-fault Act and establish the requisites for recovery under section 1009.107(1). Therefore, we conclude that our determination that recovery under section 1009.107(1) is precluded by timely denial of a claim is not dicta, but an accurate statement of the law.
      Even if our decision in Lee is dicta, it is worthy of consideration when resolving the instant dispute. It was necessary for us to review the No-fault Act and ascertain the intent of the legislature. When we conducted this review, we determined that liability under section 1009.107(1) ends upon timely denial of a claim. This is the same determination that we came to in the instant case. Therefore, we hold that our decision in Lee accurately states the requisites for recovery under section 1009.107(1) and continues to be the law in Pennsylvania. See Labrador v. City of Philadelphia, 134 Pa.Cmwlth. 427, 578 A.2d 634 (1990) (recovery of counsel fees denied because insurer timely denied the claim for no-fault benefits).

      . In light of Attorney Angino’s co-authorship of this treatise and his belief that it represents the only authoritative source on the No-fault Act, we find it interesting that Attorney Angino now asserts that such an interpretation is erroneous.

      . Donegal contends that Angino cannot raise this issue on appeal because it failed to take a timely appeal from the trial court’s April 29, 1988 order. We disagree.
      In its motion for summary judgement, Angino asked for attorneys’ fees pursuant to sections 1009.107(1) and (3). The trial court found that attorneys’ fees could be awarded under section 1009.107(1) and directed the parties to settle this matter. However, the trial court’s opinion and order are silent as to section 1009.107(3). After reviewing the 1988 order, we find that as to the issue of counsel fees, the order is interlocutory. There is no final disposition of this issue. Angino was not put out of court. In fact, even the order recognizes that this issue has not been resolved because it states that a hearing will be scheduled if the parties cannot come to terms on an appropriate fee. Therefore, we hold that this issue is properly before us.

      . T.C.O. denotes Trial Court Opinion of October 10, 1990.

      . Angino asserts that this is a reasonable fee based upon contingency fees generated by the law firm. However, Angino has also stated that during the time period involved in recovery of the interest in this case, its hourly fee was between $150.00 and $250.00. (N.T. at 75-8).