author: POPOVICH, Judge:

text:
    481 A.2d 648
    Patricia C. BRUZZI v. James A. BRUZZI, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed Aug. 17, 1984.

      George Stenhach, Coudersport, for appellant.
    Jeffrey E. Leber, Coudersport, for appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Potter County, Pennsylvania, on August 10, 1982, which found appellant, James A. Bruzzi, defendant therein, in criminal contempt of court and sentenced him to incarceration for a period of fourteen days. We vacate judgment of sentence and remand.

The procedural background of this case is as follows. On February 6, 1981, Patricia C. Bruzzi filed a complaint in divorce against appellant which was granted on October 16, 1981. The instant appeal arises from an order of court dated August 24, 1981, in which custody of the parties’ three children was awarded to their mother, Patricia C. Bruzzi, allowing for appellant’s visitation rights set forth specifically in the order.

He [appellant] shall take all three children every other' weekend commencing August 28, 1981, from Friday at six p.m. until Sunday at six p.m. Further, the defendant shall have off premises visitation throughout the weekdays, each and every week, as to one or more of the children, for no longer than twenty-four hours at a time. The defendant shall not exercise a weekday overnight visitation as to any one child more often than once every two weeks.
The defendant shall give the plaintiff twenty-four hours notice concerning the exercise of any weekday visitation before exercising same, wherein he shall inform the plaintiff as to the child or children that he is to visit, together with the length of anticipated time of such visitation.

On July 16, 1982, in accord with his weekend visitation rights, appellant picked up his children; however, instead of returning them to their mother at the time specified in the order, he transported them to another state where they were to remain for approximately one week, at which time appellant returned them to their mother. During this time, Mrs. Bruzzi had no knowledge of their whereabouts.

A petition was filed by Mrs. Bruzzi on July 26, 1982, with a Rule directed against the appellant to show cause why appellant should not be held in contempt of the aforementioned court order. A hearing was held on the return day of the rule, viz., August 9, 1982, in which the court found appellant guilty of criminal contempt and sentenced him. The court, pursuant to a request for bail thereafter filed by appellant, set bail in the amount of $2,500.00 pending appeal. Thereafter, appellant filed an unsuccessful motion for a new trial and in arrest of judgment, in which he raised the identical issue which is herein on appeal."

The sole issue with which we are concerned is whether under the facts of this case, a Common Pleas court can sentence a defendant to imprisonment upon a finding of indirect criminal contempt. Before dealing with that question, our threshold inquiry must be to determine whether the rather uncertain characterization of the contempt by the lower court is appropriate.

We hold that appellant’s conduct constituted indirect criminal contempt. The lower court opinion admits to some degree of uncertainty but finally characterizes the contempt as criminal. Although the lower court attaches little significance to the distinction, civil and criminal con-tempts may not be casually commingled. Kramer v. Kelly, 265 Pa.Super. 58, 401 A.2d 799 (1979). Any choice of labels is extremely important because of the rights attendant to a finding of criminal contempt. Criminal contempt is a crime, and the legislature has surrounded the proceeding with appropriate procedural safeguards. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979). Where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedures and confers distinct procedural rights. See e.g., Philadelphia Marine Trade Associ ation, et al. v. International Longshoremen’s Association Local Union No. 1291, et al., 392 Pa. 500, 140 A.2d 814 (1958).

First, we must inquire whether the contempt was of a civil or criminal nature. Contempt does not automatically become categorized as criminal upon a lower court so holding. Schlesinger v. Musmanno, 367 Pa. 476, 81 A.2d 316 (1951).

Contempt may be of a civil or criminal character, and criminal contempts are further divided into direct and indirect. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 cert. denied, 89 S.Ct. 857, 393 U.S. 1081, 21 L.Ed.2d 773 (1969). The court must look at “[t]he dominant purpose of a contempt proceeding [which] determines whether it is civil or criminal. If the dominant purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a proceeding in criminal contempt.” Brocker v. Brocker, supra, 429 Pa. 522, 241 A.2d at 340; Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). “But where the act of contempt complained of is a refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to enforce compliance with a decree of court are civil in nature.” Brocker v. Brocker, supra, 429 Pa. 522, 241 A.2d at 340.

On the other hand, criminal contempt is of a punitive character. In Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979), defendant violated a Protection From Abuse Act order. He was held to be in civil contempt; however, on appeal the court stated that “[t]he sole motivation was the endeavor to punish [appellant] for non-compliance. Our examination of the record and opinion of the court below shows that the court was not inclined to fashion a remedial order ____” Cipolla v. Cipolla, supra, 264 Pa.Superior Ct. 57, 398 A.2d at 1055. A civil label is inappropriate when the court is attempting to punish the contemnor for past acts of misbehavior rather than setting forth the conditions of compliance to which the contemnor was required to conform and conditioning punitive measures on failure to comply therewith. Philadelphia Marine Trade Association, et al. v. International Longshoremen’s Association Local Union No. 1291, et al., 392 Pa. 500, 140 A.2d 814 (1958).

It does not matter whether the authority of the court is incidentally vindicated, which it is more often than not. This will not convert a mainly criminal contempt finding into a civil one. Of course, the same facts may amount to both types. Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978).

Descriptively, the feature which distinguishes the two types of contempt is that a civil contempt order, because of its coercive nature, will necessarily have a condition upon which the contemnor may purge himself. This is the proverbial “key to the jailhouse door.” Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977). Janet B. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). This is true even when the condition is simply an apology to the court. In Re Ebo, 244 Pa.Super. 163, 366 A.2d 1243 (1976). For example, in In Re “B”, 482 Pa. 471, 394 A.2d 419 (1978), the Pennsylvania Supreme Court found the appellant in direct criminal contempt. The court stated, “No conditions or standards were attached which would have allowed appellant to purge himself of his contempt by compliance with the court’s order. Appellant was thus powerless to escape by compliance. Thus the contempt was criminal in nature ----” In Re “B”, supra, 482 Pa. 477, 394 A.2d at 421.

With the foregoing in mind, we find that appellant’s actions constituted criminal contempt. The Order of Court dated August 24, 1981, sets forth certain conditions surrounding appellant’s visitation rights. His violation of those specifics was complete when he returned the children to their mother. If at the time the contempt order was entered appellant still had extra-judicial custody of the children, then the court might have allowed its order to contain some coercive effect. Additionally, it would certainly have allowed appellant an opportunity to “purge” himself by returning the children. However, under the facts of this case, appellant could not be coerced into returning the children; he had already done so. Similarly, there could be no purging condition.

We must next inquire into whether the contempt was direct or indirect. “... [DJirect criminal contempt consists of misconduct of a person in the presence of the court or so near thereto to interfere with its immediate business, and punishment for such contempts may be inflicted summarily ____” Knaus v. Knaus, supra, 387 Pa. 375, 127 A.2d at 671. This descriptive term has been stretched to extend far beyond the reaches of the immediate courtroom. For example, in Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980), the defendant’s decision not to return to his parole revocation hearing subjected him to a finding of contempt committed “in open court.” We find no authority, however, for stretching the area encompassed by that phrase to allow this instance of contempt to be termed direct. We, therefore, hold appellant guilty of indirect criminal contempt. The importance of such distinction lies in the very wording of the statutes which allow for summary punishment in certain instances:

42 Pa.C.S.A. § 4131 reads as follows:

§ 4131. Classification of penal contempts
The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice. (Emphasis added) 1976, July 9, P.L. 586, No. 142 § 2, effective June 27, 1978.

We agree with the lower court that 42 Pa.C.S.A. 4131 simply classifies those contempts which may be dealt with summarily. This section and all sections relating to contempt must be read in pari materia.

42 Pa.C.S.A. 4132 reads as follows:

§ 4132. Punishment for contempt
Except as otherwise provided by statute, the punishment of imprisonment for contempt as provided in section J/.131 (relating to classification of penal contempts) shall extend only to such contempts as shall be committed in open court, and all other contempts shall be punished by fine only. (Emphasis added)
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53 § 10(52), effective June 27, 1978.

This section has been construed to restrict the sanction of punishment by imprisonment to direct contempts where summary punishment is employed. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980).

Concomitantly, 42 Pa.C.S.A. 4135, after setting forth procedural safeguards for persons guilty of certain indirect criminal contempts, allows for punishment by imprisonment for those same types of indirect criminal con-tempts. 42 Pa.C.S.A. 4135 reads as follows in pertinent part.

§ 4135. Criminal contempt

(a) General rule. — In all cases where a person shall be charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court or judge, the accused shall enjoy:
(b) Punishment. — Except as otherwise provided in this title or by statute hereafter enacted, punishment for a contempt specified in subsection (a) may be by fine not exceeding $100 or by imprisonment not exceeding 15 days in the jail of the county where the court is sitting, or both, in the discretion of the court. Where a person is committed to jail for the nonpayment of such a fine, he shall be discharged at the expiration of 15 days, but where he is also committed for a definite time, the 15 days shall be computed from the expiration of the definite time. 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53, § 10(53), effective June 27, 1978. (Emphasis added)

Notwithstanding the use of the phrase “In all cases where a person shall be charged with indirect criminal contempt ...”, we see no other conclusion to be drawn but that § 4135 refers only to criminal contempts for violation of (1) a restraining order or (2) an injunction.

Since Section 4135 is limited to certain indirect criminal contempts, the facts of this case do not allow for its application. It is unlikely that the legislature meant to exclude indirect criminal contempts not involving a restraining order or injunction from statutory control. Accordingly, we hold that § 4132 does indeed have application where it states “... all other contempts shall be punished by fine only.” Although a court’s right to punish for contempt is inherent, the manner of its exercise is regulated by the legislature. Woodruff v. Township of Lower Southampton, 68 Pa.Cmwlth. 171, 448 A.2d 692 (1982). Therefore, the lower court erred in imposing a sentence of imprisonment for indirect criminal contempt. We vacate the sentence imposed and remand for action consistent with this opinion. Jurisdiction is relinquished.

      . Appellant, in his brief, mistakenly characterizes his appeal as arising from an order. The order of the lower court was reduced to judgment and is therefore appealable under Pa.R.A.P. 302(a).

      . The judgment of sentence imposed was contained in an Order of Court docketed August 10, 1982; appellant filed his Motion for a New Trial and In Arrest of Judgment on August 18, 1982 which was denied on September 16, 1982, one day after he filed his Notice of Appeal. The lower court lacked jurisdiction after Notice of Appeal was filed on September 15, 1982. Pa.R.A.P. § 1701(a). We also note that appellant’s Notice of Appeal was untimely; however, at sentencing the 30-day restriction on filing the Notice was not made clear to appellant. Moreover, the lower court ordered immediate filing of the appeal in the same Order which denied appellant’s post-verdict motions. Therefore, notwithstanding any jurisdictional challenge available to us, we will review the judgment of the lower court.

      . "Thus, where one is accused of indirect criminal contempt, he shall enjoy the normal rights as to admission to bail ... rights to be notified of the accusation and time to prepare a defense ... the right to a speedy and public trial by an impartial jury ... the assistance of counsel ... and [he] may only be found guilty if every element of the crime is proven beyond a reasonable doubt ... [i]n short, the accused in such a proceeding is entitled to the essential procedural safeguards that attend criminal proceedings generally.” Cipolla v. Cipolla, 264 Pa.Super. 53, 59, 398 A.2d 1053, 1056 (1979).

      . In Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975), violation of a visitation order was held to be civil contempt. We would distinguish that case, and cases like it, on the basis that the dominant purpose of the court there was to coerce the parties into abiding by the order and thereby to benefit the spouse who was attempting to enforce it, whereas here the dominant purpose is to vindicate the authority of the Court of Common Pleas of Potter County and to punish appellant for his act. His incarceration will only incidentally coerce him into abiding by the order in the future. After the court in Simmons found the contempt to be civil, it remanded in part because the contempt order contained no purging condition. The lower court opinion states that the author’s purpose is to “uphold the dignity of the court.” Opinion, Fink, J. at 7.

      . It might be argued that the dominant purpose of the lower court was to coerce appellant into abiding by the terms of the original, amended custody order and that, as such, the court’s purpose could be characterized as civil. This argument is without merit for two reasons (1) even were the appellant in the future to act in strict conformance with the requirements of the custody order, his incarceration would have either happened or be pending notwithstanding his attempts to abide; and (2) all criminal penalties are formulated with the intent to coerce that citizen (and others) to thereafter act within the law.

      . Assuming arguendo, that this were a case involving summary punishment, sufficient due process not having been afforded appellant, then because imposition of sentence of imprisonment would be improper in any case not involving direct contempt, we would find the trial court erred in summarily imposing a jail sentence.

      . There is authority for such a proposition. In speaking of 17 P.S. 2042, which is enacted in substantially similar form in 42 Pa.C.S.A. § 4132, the court in Philadelphia Marine Trade Association v. International Longshoremen’s Association, supra, said "The class of ‘all other contempts’ was the class of criminal contempts which in this Commonwealth have become known as 'indirect criminal contempts’ ... 140 A.2d at p. 819.

      . The language of the statute has at times given rise to the misconception that it applied to all cases involving indirect criminal contempt. "The procedure to be followed in all indirect criminal contempt matters is clearly enunciated by the legislative body in the Act of 1931 ...” Marco Ind., Inc. v. United Steelworkers, 401 Pa. 299, 164 A.2d 205, 208 (1960) (emphasis original).
      This is presumably why, effective December 20, 1982, the legislature changed the title of this section to "Rights of persons charged with certain indirect criminal contempts” (emphasis added) and removed the phrase "In all cases where a person shall be” leaving “A person charged with indirect criminal contempt ....” The change makes it all the more clear that it refers only to cases involving a restraining order or injunction. See Commonwealth v. Ferrara, 487 Pa. 392, 409 A.2d 407 (1979).

      . A court may imprison a contemnor under circumstances such as these; however, under the pertinent legislative restrictions, the sentence must be based upon a civil contempt order with a concomitant purging condition.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    481 A.2d 654
    Catherine GARDNER v. PRUDENTIAL INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued June 27, 1984.
    Filed Aug. 28, 1984.
    Reid R. Coppock, Norristown, for appellant.
    William E. Averona, Philadelphia, for appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   OLSZEWSKI, Judge:

This action stems from a disputed insurance claim. The instant appeal follow* an order by the lower court appointing a neutral arbitrator and directing that arbitration take place in Philadelphia County. Appellant, Prudential Insurance Company, challenges the venue aspect of that order. Appellee has responded on the merits, but asserts that the trial court’s order is interlocutory and nonappealable under Pa.R.A.P., Rule 311(a), 42 Pa.C.S.A.

We address initially the question of jurisdiction.

Under 42 Pa.C.S. Sec. 7320(a)(1), a party may appeal an order denying a petition to compel arbitration. No statutory authority exists, however, for review of an order which compels the arbitration.

Appellant asserts that the order is appealable by right as a final order under 42 Pa.C.S. Sec. 742. As the lower court correctly notes, the argument is frivolous. The order by compelling arbitration forces the parties into, rather than out of, court. Lower court op. at 1.

Our research has unearthed inconsistent dictum in a recent case, Brennan v. General Accident Fire and Life Ins. Corp., 307 Pa.Super. 288, 290, 453 A.2d 356, 357 (1982). There, while quashing an appeal from an order enforcing an agreement for common law arbitration, the court observed that 42 Pa.C.S. Sec. 7320 authorizes review of an order enforcing an agreement for statutory arbitration. The dictum, apparently a misreading of Sec. 7320, has no precedential value.

No other authority supports appeal of this order as a matter of right.

Appeal quashed.

      . We note that an interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules. Pa.R.A.P., Rule 312, 42 Pa.C.S.A. and 42 Pa.C.S. Sec. 702(b); see, e.g. Pa.R.A.P„ Rule 1311, 42 Pa.C.S.A. However, appellant has failed to follow the procedure outlined in Chapter 13.


text:
    481 A.2d 655
    In re ESTATE OF Betty T. THOMPSON, Deceased. Appeal of Thomas Merle CURRY.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Aug. 31, 1984.

      Joseph J. Lee, Clearfield, for appellant.
    Richard D. Gearhart, State College, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by Thomas Merle Curry from an order of the Court of Common Pleas, Orphans’ Court Division, Clearfield County, sustaining preliminary objections in the nature of a demurrer filed by the Estate of Betty T. Thompson, Deceased, (estate) to the appeal from the decision of the Register of Wills admitting to probate the Will of Betty T. Thompson (decedent). The lower court also dismissed appellant’s appeal to the Orphans’ Court. Appellant filed this appeal under Section 908 of the Probate, Estates & Fiduciaries Code (20 Pa.C.S.A. § 908) as a party-in-interest aggrieved by the decree of the register of wills probating a will of the decedent executed in 1981, of which appellant was not a beneficiary. Appellant petitioned the court to substitute in its stead a will executed in 1958. A rule was granted upon the executor and beneficiaries under the probated will to show cause why the prayer of the petition should not be granted, whereupon the estate filed preliminary objections in the nature of a demurrer to the petition. This appeal followed the order sustaining the preliminary objections and dismissing the appeal. We affirm.

The only issue before us is whether, upon the facts averred, the law will not permit recovery by appellant, resolving any doubt in favor of a refusal to sustain the objections. Preliminary objections should be sustained only in cases which are clear and free from doubt. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973), Legman v. School District of City of Scranton, 432 Pa. 342, 247 A.2d 566 (1968).

Thomas Merle Curry is the son of John A. Thompson, deceased, and Thelma Irene Thompson. His parents divorced, and both remarried. Appellant was then adopted by his mother’s second husband, and his name was changed from John A. Thompson, Jr. In 1958, appellant’s father and his second wife, Betty T. Thompson, executed allegedly mutual or reciprocal wills in which each devised his estate to the surviving spouse or if the surviving spouse did not survive by 60 days then to appellant in trust. John A. Thompson predeceased decedent, and decedent became the sole beneficiary under his 1958 will, which was admitted to probate. Decedent executed a subsequent will in 1981, which was duly admitted to probate.

In disposing of this appeal, we must assume that decedent’s 1958 will was executed pursuant to an enforceable contract and that the execution of the 1981 will, which revoked all prior wills, was an anticipatory breach of that contract which ripened into a breach upon decedent’s death. The issue then becomes whether probate of the second will should be set aside and the original will substituted therefor on appeal under 20 Pa.C.S.A. § 908. Appellee claims that the proper method of attack is to file an action in assumpsit for breach of contract or to contest the schedule of distribution filed in accordance with the terms of the 1981 will.

We agree. The lower court properly sustained the preliminary objections and dismissed the appeal.

“A will in violation of a contract to make a will should be probated. The contract is a question of distribution.” Hunter’s Orphans Court Practice & Procedure, Contract to Make A Will, § 10, p. 515. There are numerous lower court cases cited therein:

Shaaber v. Johnston, 10 Sad. 566, Wrights’ Estate, 9 C.C. 235, Winters’ Estate, 34 Dela. 12, 57 D & C 433, Mornes Estate, 8 Lawr. 113, see 79 D & C 356, Snyder Estate, 86 D & C 449, Burns Estate, 34 Westm. 245, Kreider Estate, 85 D & C 443, Stevens Estate, 13 Fid.Rep. 39, 63 Lack. 199, Masisak Estate, 15 Fid.Rep. 233, 60 Schuyl. 190, Baron Estate, 35 D & C2d 571.

“It is well established in Pennsylvania that an agreement to make a will or to devise one’s property to a particular person or for a particular purpose is binding and irrevocable when supported by what the law regards as valid consideration (citations omitted). Such agreements are not testamentary in nature but are rather contracts with part performance postponed until the death of one of the parties.”

Zimnisky v. Zimnisky, 210 Pa.Super. 266, 270, 231 A.2d 904, 906 (1967).

Although neither this Court nor our Supreme Court has expressly described the proper procedure to be followed, where both wills are bona fide and satisfy the statutory requirements, the courts have entertained claims relating to the proper distribution of the estate at audit after probate of the later will. See Estate of Kester, 477 Pa. 243, 383 A.2d 914 (1978), Swenk’s Estate, 176 Pa.Super. 513, 108 A.2d 825 (1954). Indeed, in Swenk’s Estate, the opinion refers to a caveat which had been filed protesting the prospective probate of the second will, but this was dismissed. Objectants were eventually successful before the Orphans’ Court and on appeal by presenting their claim as third party beneficiaries at the time of distribution. The lower court found that mutual wills had been executed pursuant to an oral contract. The execution of a later will was violative of that contract, and distribution was made pursuant to the mutual or reciprocal will.

The court in Kester described the events leading up to the appeal by quoting from the trial court:

“... even though the latter document was properly admitted to probate, it was contended that distribution should be made according to the former will...” at 477 Pa. at 248, 383 A.2d at 917.

The probate of decedent’s last will and testament was properly within the register of wills’ jurisdiction. "... the courts have broadly held or recognized that the formally revocable nature of a joint will or of mutual and reciprocal wills is not to be denied merely because the will or wills are executed pursuant to a contract or arrangement between the testators not to revoke.” § 3, Agreement Not to Revoke Will, 17 ALR 4th at 180. If a particular writing meets the statutory requirements for a will, it is properly admitted into probate. However, “[t]he probate of a will without regard to its provisions is one thing, distribution of the estate of the testator in accordance with its terms is another. The former is for the register; the latter is none of his concern.” In Re Martins Estate, 349 Pa. 255, 36 A.2d 786 (1944).

We hold that the lower court properly sustained appellee’s preliminary objections and properly dismissed the appeal.

Order affirmed.

      . Thomas Merle Curry filed a complaint in assumpsit at No. 82-1820-CD in the Court of Common Pleas of Clearfield County which is concurrently before us on appeal after summary judgment was granted in his favor. Curry v. Estate of Thompson, et al., 332 Pa.Super. 364, 481 A.2d 658 (1984).


text:
    481 A.2d 658
    Thomas Merle CURRY v. ESTATE OF Betty T. THOMPSON, and James Robert McTavish, Sr., Executor of the Estate of Betty T. Thompson, Deceased, Appellants.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Aug. 31, 1984.
    Petition for Allowance of Appeal Denied Feb. 18, 1985.

      Richard D. Gearhart, State College, for appellants.
    Joseph J. Lee, Clearfield, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Clearfield County entering summary judgment in favor of appellee, Thomas Merle Curry, after appellee instituted an action in assumpsit against the Estate of Betty T. Thompson, Deceased (Estate) and the Executor of the Estate, James Robert McTavish, Sr. We affirm, but modify the order as to damages.

Thomas Merle Curry is the son of John A. Thompson, deceased, and Thelma Irene Thompson. His parents divorced, and both remarried. Appellee was then adopted by his mother’s second husband, and his name was changed from John A. Thompson, Jr. On an unspecified date in May of 1958, appellee’s father and his second wife, Betty T. Thompson, executed allegedly mutual or reciprocal wills in which each devised his or her estate to the surviving spouse, or if the spouse did not survive by sixty (60) days, then to appellee in trust. Each manifested an intention that the wills were to remain unchanged. Betty T. Thompson (Decedent) executed a subsequent will in 1981 which revoked all prior wills and which was duly admitted to probate. Appellee was not a beneficiary under this will, and he lodged a two-pronged attack on the dispositions of the latter will. First, he contested the probate of the 1981 will. This Court at In Re; Estate of Thompson, deceased; Appeal of Curry, 332 Pa.Super. 360, 481 A.2d 655 (1984), affirmed the Order of the lower court sustaining preliminary objections in the nature of a demurrer and dismissing the appeal. The case sub judice involves an action in assumpsit against the Estate and Decedent’s Executor. Both parties moved for summary judgment, and the lower court entered an Order granting summary judgment in favor of appellee. This appeal followed.

The pertinent provision of the 1958 will of Decedent reads as follows:

“ITEM II: I give, devise and bequeath my entire estate, both realty and personalty, of whatever nature to my husband, John A. Thompson, if he survives me by sixty days. In the event of simultaneous death or death resulting from common disaster, with my husband, or if my husband dies within sixty days of my death, or if my husband predeceases me, then I direct that my entire estate shall be disposed of as follows:
A. I give to my trustee hereinafter named my entire estate, both realty and personalty, in trust to hold, invest and reinvest the same, collect the income, and after paying all expenses incident to the management of the trust, to use and apply as much of the net income and principal as may be necessary in the sole discretion of my trustee for the support, well-being and education of John A. Thompson, Jr., now known under adoptive name of Thomas Merle Curry, residing at 208 Marion Avenue, Punxsutawney, Pennsylvania, and as he arrives at the age of twenty-five, to pay him the principal and any accumulation of income, less such amounts as may have been expended for his benefit. If he should die without leaving issue before attaining the age of twenty-five, I direct that the balance of principal and income shall fall into the residue of my estate. I direct that payments for maintenance and education shall be made without the intervention of a guardian, and the receipt of such person as may be selected by my trustee to disburse such payments shall be a sufficient acquittance.
★ ❖ Jfc sk ^
ITEM Y: This will being identical in its terms and reciprocal with a will made by my husband, John A. Thompson, dated this same day. The wills are identical since it is our intention and we hereby agree that the wills are to remain unchanged upon consideration of
receiving more than our Intestate share of each others estate.” (Emphasis added)

The relevant portion of the will of John A. Thompson, deceased, was reciprocal.

The sole issue with which we are concerned is whether the lower court correctly entered summary judgment.

“In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.”

Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). We note initially that

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading but his response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Pa.R.Civ.P. 1035.” Marchese v. Marchese, 457 Pa. 625, 628, 326 A.2d 321, 322 (1974).

However,

“Of course, mere failure to file counter affidavits does not assure that summary judgment will be granted to the moving party. The moving party’s evidence must clearly exclude any genuine issue of material fact.”

Aimco Imports v. Industrial Valley Bank etc., 291 Pa.Super. 233, 238, 435 A.2d 884, 886 (1981). A motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on its pleadings, unless a genuine issue of fact is made out in the moving party’s evidence taken by itself. Carollo v. Forty-eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977).

The appellee, Thomas Merle Curry, filed a complaint in assumpsit averring that he is a third-party beneficiary under the alleged contract contained in the mutual or reciprocal wills of Decedent and John A. Thompson, which contract is allegedly irrevocable throughout the lifetime of the survivor. Appellants filed an answer and new matter which for the most part, claimed lack of knowledge or admitted appellee’s allegations, except that appellants specifically denied that the will of Decedent was made pursuant to a contract.

Since “[a] contract to make a will in a certain manner or bequeath by will a specific monetary sum is recognized in Pennsylvania as valid ...” (Fahringer v. Strine Estate, 420 Pa. 48, 52, 216 A.2d 82, 85 (1966)) and since a contract such as this may be enforced as a third-party beneficiary contract (.Zimnisky v. Zimnisky, 210 Pa.Super. 266, 231 A.2d 904 (1967)), appellee must prevail if the words contained in the 1958 will of Decedent constitute a contract to dispose of Decedent’s bounty in a particular manner and if the parties to that agreement further contracted to give up the right to revocation. We note that the wording is apparently sui generis.

Our Supreme Court’s most recent pronouncement concerning the irrevocability of mutual or reciprocal wills is contained in the Estate of Joseph T. Imbruglia, 479 Pa. 95, 387 A.2d 851 (1978). In that case, decedent and his first wife, Elvira, executed wills providing that the entire residue was to go to the surviving spouse, but in the event that spouse had predeceased the decedent, property located at a specific address in Philadelphia would be distributed to certain of Elvira’s relatives, (appellants) and the residue would be equally divided among appellants and relatives of decedent. Elvira predeceased decedent, and decedent married his surviving spouse, Josephine. A new will was executed denying appellants a share of the residuary estate. The last will and a codicil thereto were admitted to probate, and the executors filed a first account. Thereafter, upon a stipulation of facts, the court dismissed the objection of the aforementioned disappointed beneficiaries to the probate of the will. In Imbruglia, the Supreme Court noted that “mere execution of a will with provisions reciprocal to that of another does not [] with nothing more establish such a contract.” Id. 479 Pa. at 98, 387 A.2d at 853. The Court in Imbruglia referred to Kester Estate, 477 Pa. 243, 383 A.2d 914 (1978) wherein it was stated

“In the absence of a valid contract, the mere concurrent execution of the will, with full knowledge of its contents by both testators, is not enough to establish a legal obligation to forebear revocation; ____ It is not sufficient to prevent revocation that there are wills simultaneously made, and similar in their cross provisions but the existence of a clear and definite contract must be shown, either by proof of an express agreement, or by unequivocal circumstances. Id. 479 Pa. 98, 387 A.2d 853, quoting Kester Estate, 477 Pa. at 250, 383 A.2d at 918.

The Court further noted that “in Kester, we found that the language ‘it is our wish and mutual understanding that we give and bequeath our entire estate’ in a particular manner contained in the joint will of the decedent and her husband fell short of the ‘demanding’ standard of proof of a contract not to revoke the will.” Id. 479 Pa. at 98, 387 A.2d 853, Kester Estate, 477 Pa. at 250, 383 A.2d at 918 (1978). The Imbruglia Court finally held

“While Joseph and Elvira Imbruglia devised each of their estates in a reciprocal manner and state [sic] a ‘consideration’ of the other’s act of writing a similar will, neither writing demonstrates that Joseph or Elvira agreed to give up their right to revoke the wills. Further, no extrinsic evidence exists in the stipulated record proving an enforceable agreement between Joseph and Elvira. Appellants have, therefore, just as in ... Kester fallen short of their burden of showing an agreement limiting decedent’s right to revoke his [first] will.” (Emphasis added) Id., 479 Pa. at 100, 387 A.2d at 853

Likewise, in Hoffert Estate, 65 Pa.Super. 515 (1917), the joint will recited “Whereas, we have agreed to and with each other and do hereby will” certain property to a child of the wife or (children of the child) if the property were not sold in the lifetime of the survivor.” Id. 65 Pa.Super. at 519. Upon the wife’s death, the husband bequeathed the property to others, and specific performance was sought to compel conveyance of the property according to the joint will. Our court, likewise, found no enforceable agreement limiting the husband’s power to revoke the will.

In both recent pronouncements, Kester and Imbruglia, a clear and definite contract was not shown, either by proof of an express agreement or by unequivocal circumstances. Kester Estate, supra. The wording used in the wills could only be described as precatory or, at best, indicative of a mutual understanding.

“When it is claimed that someone has contractually limited his testamentary freedom, our standard of proof is a demanding one. In the case of a joint will in which extrinsic evidence is relied upon to prove the existence of a contract, we held that the proof must be ‘clear and convincing’.” Id. 477 Pa. at 251, 383 A.2d at 918.

Here the contract can be discerned from the face of the will. No extrinsic evidence is necessary. The parties agreed that the wills are to remain “unchanged”. The will also contains a statement of the consideration for their agreement. “Valid consideration confers a benefit upon the promissor or causes a detriment to the promissee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise.” Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 72 n. 6, 384 A.2d 1228, 1232 n. 6 (1978). Each testament serves as the consideration for the other. The parties are constrained to forebear any change in the provisions of their wills in exchange for their receiving more than their intestate share. Herrs Estate, 400 Pa. 90, 161 A.2d 32 (1960), Swenks Estate, 176 Pa.Super. 513, 108 A.2d 825 (1954). Usually the question of consideration arises where the testator forebears revocability in exchange for the recipient of his bounty rendering services to him during his lifetime. However, in Swenks Estate, the court found consideration where “[the testator] wanted to provide for Miss Swenk, but she was unwilling to do so without Miss Swenk naming the Ulmers as the benefactors of her will.” 176 Pa.Super. at 519, 108 A.2d at 828.

Were it necessary to resort to parole or extrinsic evidence to prove the nature and terms of the contract, aliunde the will, it would be necessary for a jury to ascertain the meaning to be ascribed to the words in light of the surrounding circumstances and thereby to determine the terms or existence of the contract. See Curtin v. Marson, 185 Pa.Super. 194, 138 A.2d 149 (1958). Here, we have a will before us, the bona fide nature of which is not in dispute; its terminology is explicitly contractual, and since it expressly includes an intention to be bound and thereby remain “unchanged”, it does not fall short of the “demanding standard” as did the wills in Kester and Imbruglia. We, therefore, hold that the court did not err in entering summary judgment in favor of appellee.

We hold, however, that the court erred in the amount awarded to appellee. In its order, the court stated in pertinent part

“It is the ORDER of this Court that Judgment be and is hereby entered in favor of the Plaintiff and against the Defendants in the amount of the gross value of the Estate of Betty T. Thompson less any amounts properly paid or payable for taxes, debts and reasonable funeral expenses____”

Under 20 Pa.C.S.A. § 3392, “claims” against the estate are preceded in priority by administration expenses, family exemption, funeral expenses, the cost of a gravemarker, as well as rents for the occupancy of decedent’s residence for six months immediately prior to death. Appellee stands in the position of any other creditor attempting to proceed against the assets of the estate. In re: Estate of Nakoneczny, 456 Pa. 320, 319 A.2d 893 (1974), In re: Beeruk’s Estate, 429 Pa. 415, 241 A.2d 755 (1968).

Accordingly, consistent with our power to affirm, modify, vacate, set aside or reverse any order brought before us for review, without returning the record for amendment or modification to the court below, 42 Pa.C.S.A. § 706, we enter here an Order modifying the order of the lower court, viz.:

AND NOW, this 31st day of August, 1984, having considered the order granting Plaintiff’s Motion for Summary Judgment, it is the ORDER of this Court that Judgment entered in favor of the Plaintiff and against the Defendants be and is hereby affirmed in the amount of the gross value of the Estate of Betty T. Thompson, Deceased, less any amounts payable for taxes, administration expenses, medical expenses under 20 Pa.C.S.A. § 3392(3), funeral expenses, debts, and the cost of a gravemarker. In all other respects, we affirm the order of the lower court.

Order affirmed as modified.

      . John A. Thompson died in 1968, and, in accordance with the terms of his will, decedent received his residuary estate.

      . In reviewing the entry of summary judgment, we are limited to a review of the submitted pleadings and affidavits. Nowhere do appellants raise a material issue of fact as to failure of consideration which would arguably have occurred had Decedent’s husband’s estate left her with nothing more than that which she would have taken under the intestate laws. There is, moreover, consideration in the parties’ mutual obligation to forebear revocability.

      . 1972, June 30, P.L. 508, No. 164, § 2, eff. July 1, 1972.


author: CIRILLO, Judge: JOHNSON, Judge,

text:
    481 A.2d 662
    Edmund J. URBAN v. Margaret A. URBAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1983.
    Filed Sept. 7, 1984.
    Petition for Allowance of Appeal Denied Jan. 8, 1985.

      Roland J. Christy, Spring House, for appellant.
    William M. Cowan, Jr., Levittown, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas, Bucks County, sustaining appellee’s preliminary objections and striking appellant’s answer and new matter.

Appellant, Margaret Urban, had filed for divorce against her husband, Edmund Urban, the appellee in this case. Pursuant to the Divorce Code, appellant requested among other things, the equitable distribution of marital property. While the divorce matters were pending, Mr. Urban on February 22, 1981, filed a complaint in equity which averred that an agreement existed between the parties to divide the proceeds from the sale of their marital residence. Appellant did not respond to this complaint until nearly fifteen months had elapsed. On May 11, 1982, appellant filed an answer and new matter to the complaint.

Shortly thereafter, appellee filed preliminary objections which alleged that he had been prejudiced by the late filing and demanded that the answer and new matter therefore be stricken. Appellant’s answer to the preliminary objections admitted the late filing of the original answer, but denied that prejudice resulted to the appellee because of it. The appellee ordered the matter for argument on petition and answer. The Honorable Judge Issac E. Garb sustained appellee’s preliminary objections and struck appellant’s untimely filed answer. This appeal followed.

We address first the appealability of this order. Generally, an appeal will lie only from a final order unless otherwise permitted by statute. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). “An order is interlocutory and not final unless it effectively puts the litigant out of court, terminates the litigation or disposes of the entire case.” Rigidply Rafters v. Aetna Cas. & Sur. Co., 311 Pa.Super. 549, 552, 457 A.2d 1318, 1320 (1983); Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981). However, in determining what is a final appealable order, “we must look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, supra, 288 Pa.Superior Ct. at 255, 431 A.2d at 1034-35; Praisner v. Stocker, supra. “Certain orders which have not put a litigant literally ‘out of court’ or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from [presenting her claim].” Praisner v. Stocker, supra, 313 Pa.Superior Ct. at 338, 459 A.2d at 1258-59; Freeze v. Donegal Mutual Insurance, 301 Pa.Super. 344, 447 A.2d 999 (1982).

Instantly, we conclude that the lower court order striking appellant’s answer and new matter is sufficiently final to warrant our review. See, Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Higgs v. New York Fire Insurance Co., 176 Pa.Super. 310, 106 A.2d 860 (1954); 2 P.L.E. Appeals § 36. The striking of the answer and new matter prevents appellant from denying averments of fact in the complaint and further prevents her from asserting affirmative defenses to appellee’s action. Pa.R.C.P. 1029, 1030. The effect of appellant’s pleadings being stricken here is to admit the existence of a valid agreement concerning the division of proceeds from the sale of the marital residence. For purposes of equitable distribution under the Divorce Code, the marital residence would thereby be excluded from consideration as marital property. 23 Pa.C.S. § 401(e)(2). Because the family home is both a substantial and unique asset, we believe that its removal from marital property calculation effectively puts appellant “out of court” on her claim for equitable distribution. Accordingly, we consider this appeal.

The Rules of Civil Procedure in Pennsylvania allow twenty days, after service of a complaint for the filing of an answer. Pa.R.C.P. 1026. An answer not filed within the prescribed time may be stricken. Pa.R.C.P. 1017(b)(2). The twenty day filing rule, however, is not mandatory but permissive. Where possible the rules of civil procedure, including filing rules, should be construed in a liberal fashion to effect equitable results. Pa.R.C.P. 126; Goldsborough v. City of Philadelphia, 309 Pa.Super. 347, 455 A.2d 643 (1982). Thus, the filing of dilatory pleadings will generally be permitted where the opposing party has not been prejudiced by the delay. Much is left to the discretion of the lower court. Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951); Goldsborough v. City of Philadelphia, supra; Commonwealth, Department of Transportation v. Pace, 64 Pa.Cmwlth. 273, 439 A.2d 1320 (1982).

Appellant concedes that her answer and new matter were filed over one year after the time mandated by our rules had expired. Pa.R.C.P. 1026. There is no claim nor indication that appellant at any time sought leave of court to file an amended or late pleading. Pa.R.C.P. 1033. Nevertheless, appellant argues that the striking of her answer was improper because no prejudice resulted to appellee because of the untimely filing.

The court below did not subscribe to appellant’s characterization of events. After finding that appellee was indeed severely prejudiced by the delay in the filing of the answer, Judge Garb sustained appellee’s preliminary objections. In this regard Judge Garb opined:

(The) delay in time is not inconsequential and without prejudice to the plaintiff in view of the nature of these proceedings. The complaint was for the purpose of partitioning the proceeds of the sale of the property allegedly held as tenants by the entireties in the sum, initially, of approximately $33,500.00 held in escrow by the attorneys for the parties. During this entire period of delay the funds were held by the escrow agents and were not available to the parties who were the rightful owners... In conjunction with the divorce proceedings a master was appointed and hearing dates fixed which had to be aborted because of the pendency of this action and this late filing of defendant’s pleading. We are satisfied that the plaintiff has been severely prejudiced in denial of a speedy determination of whatever rights he may have in the fund in question and therefore the access to whatever those funds may be.

Plainly, Judge Garb’s well-reasoned explication demonstrates that he acted within his discretion in striking appellant’s answer and new matter.

Appellant would have us invoke Pa.R.C.P. 209 as a basis for ruling that the lower court prematurely considered the matter of prejudice. Because we think that the fact finding mechanism engendered by Rule 209 is not applicable in this case, we reject this argument.

Appellant argues that appellee’s preliminary objections are in the nature of a petition within the ambit of Rule 209. From this premise, appellant argues that because appellee as the moving party set the matter down for argument without taking depositions, the averments in the answer, including the denial of prejudice, were deemed admitted. If this case were one in which Rule 209 applied, appellant would not be incorrect in her assertion. However, it is not.

Rule 209 is implemented primarily as a fact-finding mechanism when certain factual issues remain unclear and in dispute. Owens v. McCurdy, 304 Pa.Super. 510, 450 A.2d 1028 (1982); Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982). The rule places the duty on the moving party to proceed with depositions to prove disputed facts, or in the alternative, to admit the averments of fact in the respondent’s answer. This procedure expedites matters and furnishes the lower court with a basis for disposition.

Preliminary objections are not considered in all circumstances to be petitions under Rule 209. Instantly, the mechanics of this rule are not necessary to prove the facts raised in appellee’s preliminary objections. Appellee’s preliminary objections were in the nature of a motion to strike a pleading. Objections raised by a motion to strike are limited to errors of form, where the alleged defects appear on the record or on the face of the pleadings. Where the facts are established on the record, and no real dispute concerning them exists, Rule 209 is not applicable. See, Anderson, Pennsylvania Civil Practice § 209.7; 5 Standard Pennsylvania Practice 2d § 25:44; Goodrich-Amram 2d § 209:2.

In this case, appellee’s preliminary objections were self-sustaining. All facts relevant to the late filing were clearly stated in the appellee’s pleading and verified by the record. Moreover, it is plain on the record that the appellee’s action was kept in abeyance during the delay, and the subject funds inaccessibly held in escrow for that time. From these record facts, the lower court ruled as a matter of law that prejudice resulted to the appellee because of the extremely late filing of appellant’s answer. There is no need for further proof.

Notwithstanding the potential unfortunate consequence to the appellant, Judge Garb’s order was an appropriate sanction for appellant’s egregious breach of filing requirements. In light of the resultant prejudice to the appellee, even a most liberal reading of the rules would dictate a similar result.

Order affirmed.

SPAETH, President Judge, concurs in the result.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. Appellee’s Preliminary Objections, which were sustained by the trial court, raised an important factual issue which Appellant denied in her Answer to Preliminary Objections. I believe the trial court should have taken evidence on this factual dispute before deciding to grant the relief that Appellee requested.

On February 27, 1981 Appellee Edmund J. Urban filed a Complaint in Equity alleging that an agreement existed between the parties to sell residential property which they jointly owned as tenants by the entireties and divide the net proceeds equally. A copy of the complaint containing a notice to defend was served on March 6, 1981 and fourteen months later on May 14, 1982 Appellant Margaret A. Urban filed an Answer and New Matter. Appellee responded on June 8, 1982 by filing unverified Preliminary Objections seeking to strike off Appellant’s Answer and New Matter because of lack of conformity to rules of court. Paragraph 13 of the Preliminary Objections alleged that Appellant’s delay in filing her Answer and New Matter prejudiced Appellee. This averment was denied in Appellant’s Answer to Plaintiff’s Preliminary Objections filed on June 23, 1982, but Appellant did not challenge the lack of verification of Appellee’s Preliminary Objections.

On August 6, 1982, without taking any evidence, the Honorable Isaac S. Garb sustained Appellee’s Preliminary Objections and ordered that Appellant’s Answer and New Matter be stricken.

Pa.R.C.P. 1026 provides:

Every pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.

This rule, which Appellant clearly did not follow, prescribes no remedy for noncompliance. Where the late filing of a pleading has caused prejudice to the opposing party, however, late pleadings have been stricken.

In Moore v. Clabell-Hickory, 301 Pa.Super. 154, 447 A.2d 288 (1982) plaintiffs, shortly before the expiration of the statute of limitations period, brought an action against two general partnerships believed to be the operators of an apartment complex. Defendants’ answer filed almost three months later denied that they operated the apartment complex. Timely preliminary objections to defendants answer claimed that, if the answer had been filed in a timely fashion, plaintiffs would have had an opportunity to join others as additional defendants prior to the expiration of the statute of limitations.

The trial court concluded that plaintiffs had contributed to the late filing of the answer by waiting until just before the running of the statute to file the complaint. This court, believing that the equities favored the plaintiffs, found that the trial court’s failure to strike the defendant’s answer was an abuse of discretion. See also Commonwealth, Department of Environmental Resources v. Marcoal Company, 54 Pa.Commw. 87, 419 A.2d 821 (1980).

In Moore v. Clabell-Hickory, the record on its face demonstrated that the plaintiffs had been prejudiced by the running of the statute of limitations. There were no unresolved issues of fact before the court on the question of prejudice. In the instant case, however, the issue of prejudice is contested. Appellee Edmund A. Urban alleged that the Appellant’s substantial delay in answering the complaint significantly prejudiced him. This claim of prejudice was denied by Appellant leaving this important factual issue unresolved.

Pa.R.C.P. 1028(c) provides guidance to trial courts when factual issues raised in preliminary objections remain unresolved. The rule states:

A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise. (Emphasis supplied).

In the case at bar, the trial court should have resolved the factual dispute by receiving evidence through interrogatories, depositions or an evidentiary hearing even though the parties had not provided the trial court with evidence necessary for a proper resolution. Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974); Holt Hauling & Warehousing v. Aronow Roofing, 309 Pa.Super. 158, 161, 454 A.2d 1131, 1133 (1983).

When, as in the instant case, preliminary objections can only be resolved by the presentation of facts outside the record, the trial court must take additional evidence. The failure of the trial court to take evidence where an issue of fact is raised on preliminary objection is a ground, on appeal, to vacate and remand any determination on the preliminary objection. Telstar Corp. v. Berman, 281 Pa. Super. 443, 422 A.2d 551 (1980). See also Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982) (trial court decision opening default judgment was reversed and remanded where no depositions were taken and where there were contested issues of fact).

Because I believe that the trial court had no basis of record finding that the Plaintiff-Appellee had been prejudiced, I would vacate and remand to permit the trial court to take evidence on the question of prejudice.

      . 23 Pa.C.S. § 101 et seq.

      . Similarly, the absence of formal verification of appellee’s preliminary objections is not significant here.

      . Because the answer was stricken, we do not reach the merits of appellant’s allegations of fraud, etc...

      . Appellant argues before this court that Appellee's Preliminary Objections should be stricken because they are not verified, but since, this argument was raised for the first time in Appellant’s Brief it is waived. Williams v. Stoudt & Son, Inc., 9 D & C 2d 786, 27 Leh.Co.LJ. 130 (1956). See abo General Milb, Inc. v. Suavely, 203 Pa.Super. 162, 199 A.2d 540 (1964); Pa.R.C.P. 1032; Goodrich-Amram 2d § 1024(a):4. But see Siegel v. Stahlfield, 64 D. & C.2d 132 (1973).


author: OLSZEWSKI, Judge: CERCONE, Judge,

text:
    481 A.2d 668
    Geralyn VOGEL v. NATIONAL GRANGE MUTUAL INS. CO., Appellant.
    Superior Court of Pennsylvania.
    Argued June 26, 1984.
    Filed Sept. 7, 1984.

      James M. Marsh, Philadelphia, for appellant.
    Raymond J. Falzone, Jr., Media, for appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant challenges an order confirming an arbitration award in an automobile accident case.

Appellee sustained injuries in an automobile accident on June 11, 1980. At the time, she was a “covered person” under a policy issued by National Grange, her father’s insurer. Under the policy’s no-fault coverage, appellee recovered an amount in excess of $7,000 for medical expenses and $15,000 for work loss benefits. She received an additional $15,000, the policy limit from the other driver’s liability insurer.

Appellee seeks further recovery under the “Underinsured Motorists Coverage.” This provision offers separate coverage for a “covered person” legally entitled to recover from the owner/operator of an underinsured motor vehicle. The rider limits liability to $30,000 for all damages resulting from any one accident. Appellee asked the insurance company to multiply this liability limit by three, the number of vehicles insured under the policy — and so, allow a $90,000 limit on the “underinsured” coverage. National Grange refused the “stacking” demand.

Under the policy, the matter went to arbitration. The arbitrators valued appellee’s case at $75,000. Relying on “stacking”, they entered a finding of $60,000 against appellant insurance company. The trial court confirmed the award. This appeal follows.

The sole issue on appeal is whether the arbitrators, by allowing “stacking” of the “underinsured” benefits, committed an error of law.

The policy on its face proscribed “stacking”. Neither party has produced persuasive authority on this point. Our Court has found valid and enforceable policy provisions which prevent the stacking of underinsured motorist benefits. Haegele v. Pennsylvania General Insurance Co., 330 Pa.Super. 481, 479 A.2d 1005 (1984); Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984). We are loathe to ignore the express language of the policy. “It is not the function of the court to rewrite a policy or give its terms a construction in conflict with their plain meaning.” Garber v. Travelers Insurance Cos., 280 Pa.Super. 323, 325, 421 A.2d 744, 745 (1980) (citations omitted).

Order vacated and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

CERCONE, J., files a concurring statement.

CERCONE, Judge,

concurring:

I would reverse on the basis of this court’s recent opinion in Haegele v. Pennsylvania General Insurance Co., 330 Pa.Superior Ct. 481, 479 A.2d 1005 (1984).

      . This figure represents $75,000 less the $15,000 appellee had received from the other driver’s carrier.

      . In accord with the policy provision for arbitration under the Pennsylvania Arbitration Act of 1927, we will correct the arbitrator’s award for an error of law. Young v. United States Fidelity & Guaranty Co., 299 Pa.Super. 237, 445 A.2d 542 (1982); Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. Sec. 161 et seq., repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, Sec. 501(c), effective in 60 days.

        The lower court mistakenly concluded that repeal of the 1927 Act rendered the dispute subject to arbitration under the Uniform Arbitration Act. 42 Pa.C.S. Sec. 7301 et seq. It is well-settled that the law extant at the time the cause arose governs the subsequent arbitration. See Couch on Insurance 2d (Rev. ed.) Sec. 50:15.
      Similarly, in light of recent decisions, we reject appellee’s argument that an apparent inconsistency in the policy gives rise to an arbitration at common law. See, e.g., Obdyke v. Harleysville Mut. Ins. Co., 299 Pa.Super. 298, 445 A.2d 763 (1982), affirmed 500 Pa. 107, 454 A.2d 984 (1983).

      . The policy favoring “stacking” of “uninsured” benefits does not attend here. Cf. White v. Concord Mutual Ins. Co., 296 Pa.Super. 171, 442 A.2d 713 (1982); Davis v. Government Employees Ins. Co., 296 Pa.Super. 198, 442 A.2d 727 (1982) (as a matter of law, an "underinsured” motorist who nonetheless carries the statutory minimum amount of insurance is not an “uninsured” motorist here). A decision to equate the two is properly left to the legislature.


author: DEL SOLE, Judge:

text:
    481 A.2d 670
    COMMONWEALTH of Pennsylvania v. James E. ZERPHY, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Sept. 7, 1984.
    Petition for Allowance of Appeal Denied Feb. 6, 1985.

      J. Richard Gray, Lancaster, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

This is an appeal from an Order denying Appellant’s Motion to Quash the Information against him based on § 110 of the Crimes Code and the Double Jeopardy Clause of the Fifth Amendment, which applies to the states through the Fourteenth Amendment.

On August 11, 1982, an Order was entered under the Protection from Abuse Act, 35 Pa.C.S.A. § 10181 et seq., evicting Appellant from the home of Carol Dove and ordering him “... not to harass, abuse, strike, telephone or in any way have further contact with Carol N. Dove ...” The Order was effective for one year, commencing August 6, 1982.

On January 30, 1983, while Ms. Dove and Appellant were both in the Jonestown Perserverance Fire Club, Appellant allegedly struck Ms. Dove twice in the face with his fists. When Ms. Dove and her daughter returned to her home, they discovered Appellant waiting there with a rifle. Ms. Dove and her daughter then went to the Pennsylvania State Police and requested assistance. Two marked police cars, carrying Sergeant Sincavage and Troopers Pfautz, Sarley, Krankowski and Mitchel drove to the Dove residence, with Ms. Dove following. The officers stopped their cars about 100 yards from the house. Appellant fired a shot at the police vehicles, hitting the front grill of the patrol car occupied by Sergeant Sincavage and Trooper Mitchel. Appellant began to run as the officers got out of their vehicles. Upon being ordered to stop and drop the rifle, Appellant stopped, pointed the rifle at the officers, then layed the rifle on the ground and was placed under arrest.

On January 31, Ms. Dove filed a Petition to hold Appellant in Contempt for violating the Protection Order. The Contempt Petition recited the events beginning with the assault at the Fire Club and ending with the shooting incident involving the State Police.

That same day, criminal charges of attempted homicide, recklessly endangering another person, aggravated assault, disorderly conduct and criminal mischief were filed against Appellant for his conduct towards the four police officers and for damaging the patrol car.

On February 10, 1983, a hearing was held on the alleged violation of the Protection from Abuse Order. Appellant was found not guilty of indirect criminal contempt. Appellant subsequently filed a Motion to Quash the Criminal Information, alleging that he had already been tried and acquitted for the same conduct or same criminal episode. The motion was denied and this appeal followed.

Appellant first argues that prosecution is barred by the compulsory joinder rule set forth in Campana 1 and Campana II and in § 110 of the Crimes Code.

In Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), the Pennsylvania Supreme Court clarified that an alleged Campana rule violation is not a separate and distinct claim from an asserted § 110 violation. In Campana, the Court articulated the obligation to join charges arising from the same criminal episode. The compulsory joinder rule of Campana was not based on constitutional grounds, but rather on the Court’s supervisory powers over criminal proceedings. See Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). In § 110, the legislature provided a sanction where such joinder does not occur. See Commonwealth v. Hude, supra, 500 Pa. at 488, 458 A.2d at 180.

In Commonwealth v. Allen, 322 Pa.Super. 424, 469 A.2d 1063 (1983), this Court held that § 110 of the Crimes Code does not apply to indirect criminal contempt. Section 107 of the Crimes Code provides that the provisions of Part 1 of Title 18, including § 110, are applicable to offenses defined by that title or by any other statute. However, § 107(c) provides that section “does not affect the power of a court ... to punish for contempt”. The Court in Allen further noted that where the first proceeding is for indirect criminal contempt brought under the Protection from Abuse Act, a subsequent prosecution for the crimes which composed the contempt does not present the type of governmental harassment that the compulsory joinder rule of Campana was designed to prevent.

Having determined that Appellant is not entitled to relief under the statutory provisions of the Crimes Code, we will proceed to consider Appellant’s double jeopardy claim. See Commonwealth v. Hude, supra, 500 Pa. at 488, 458 A.2d at 180.

The Double Jeopardy Clause prohibits a second prosecution for the same offense after an acquittal. The test to be applied to determine whether there are two offenses or only one is whether each offense requires proof of a fact which the other does not. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

Using that test, the indirect criminal contempt charge clearly was a separate and distinct offense from the charges relating to the shooting incident. Although the fact that Appellant shot at the police cars was mentioned in the Contempt Petition, such conduct could not be the basis for the alleged contempt. The Protective Order only prohibited abusive conduct towards Ms. Dove. In order to find Appellant guilty of indirect criminal contempt, it would have to be proven that Appellant willfully disobeyed the Protective Order by harassing, abusing or striking, etc., Carol Dove. However, the facts relating to Appellant’s conduct towards Ms. Dove are irrelevant to proving him guilty of attempted homicide, recklessly endangering, aggravated assault and disorderly conduct towards the four State Policemen and criminal mischief for damaging the patrol car. The only relation between the offenses is that the police went to the Dove residence in response to the alleged violation of the Protection Order. Therefore, prosecution of the charges pending against Appellant is not barred by the prohibition against double jeopardy.

Order affirmed. Case remanded for further proceedings.

Jurisdiction relinquished.

      . Denial of a pretrial application for discharge on double jeopardy grounds is a "final order” and may be appealed before trial. Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980).

      . Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973).

      . Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

      . It is undisputed that double jeopardy attaches to criminal contempt trials. Cipolla v. apolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979).


author: JOHNSON, Judge:

text:
    481 A.2d 672
    COMMONWEALTH of Pennsylvania v. Vincent BANKSTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Sept. 7, 1984.

      Barnaby Wittels, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Appellant was convicted of four counts of robbery, one count each of simple and aggravated assault, conspiracy and carrying a firearm on a public street or public property, following a non-jury trial on July 7, 1982. He was sentenced to 2lh to 10 years on one of the robbery convictions and a consecutive term of 2V2 to 5 years for aggravated assault. Sentence was suspended on all other convictions. This direct appeal followed.

The charges resulted from appellant’s participation in a robbery on October 22, 1981. Appellant and two co-conspirators entered the home of one William Green, trained weapons on the occupants and ordered those present to lie on the floor. Appellant searched the pockets of the occupants, taking whatever money he found. Upon departing, appellant fired a shot into the room.

The sole issue raised on appeal concerns whether the trial court erred in extending time for trial pursuant to Pa.R. Crim.P. 1100 (Rule 1100).

Charges were filed on October 26, 1981. Appellant was arrested and arraigned on November 2. The preliminary hearing set for November 6 was continued to November 12, as appellant did not have counsel, nor was he brought down from his place of incarceration on that date. On November 12, appellant did not appear and a bench warrant was issued. The case was next listed for a preliminary hearing on March 19, 1982, but was continued on that date for appointment of new counsel. Following new counsel’s appointment on March 25, 1982, the preliminary hearing was held on April 20, 1982 and appellant held for court.

The Commonwealth’s petition to extend was filed April 22, 1982. Defense counsel requested a continuance on May 14 which was granted until May 28. On May 19, defense counsel filed an answer and motion to dismiss under Rule 1100(f). The hearing on the petition to extend and the motion to dismiss was held May 28, at which time the extension petition was granted and time for trial extended to July 19. Trial commenced July 7, 1982.

Appellant argues that the trial court erred in excluding various time periods and extending time for trial. The Commonwealth has the burden of showing, by a preponderance of the evidence, that trial cannot be commenced within the time prescribed by Rule 1100, despite the Commonwealth’s due diligence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983). See also Pa.R. Crim.P. 1100(c). When we review the ruling of the trial court that the Commonwealth has met this burden, we consider only the evidence presented by the Commonwealth and so much evidence presented by the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. Id.

It is conceded that the period between the filing of the complaint on October 26 and appellant’s arrest on November 2, 1981 is excludable. See Pa.R.Crim.P. 1100(d)(1).

Appellant argues initially that the period from November 6 to the 12th was improperly excluded. However, appellant’s counsel conceded the validity of the exclusion of this six-day period at the May 28 hearing. Hence, we need not address it further. See Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983) (to be preserved for review, Rule 1100 issue must not only be raised by appropriate motion, but not be abandoned when case argued to trial court).

The next period of excluded time is from December 22, 1981 to January 20, 1982. The court excluded this time on the basis of testimony from Richard DiBenedetto, Administrator of Extraditions in the district attorney’s office of Philadelphia.

The relevant portions of that testimony indicate that on December 22, 1981, DiBenedetto was advised by Montgomery County authorities that appellant had been sent that day to Farview State Hospital from Montgomery County Prison, where appellant had been held on an unrelated criminal conviction. The purpose of the transfer was to determine appellant’s competency to be sentenced on the Montgomery County conviction. DiBenedetto was informed, on February 1, 1982, that appellant had been examined and found competent on January 20.

Appellant charges error in the trial court’s determination that he was unavailable for twenty-nine days between December 22, 1981 and January 20, 1982 due to his competency examination in Montgomery County.

Section (d)(3)(i) of Rule 1100 states:

(d) In determining the period for commencement of trial, there shall be excluded therefrom: ...
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;

Defendants who are hospitalized when seriously ill are deemed unavailable for purposes of Rule 1100(d). Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980); Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976). Furthermore, where the defendant is committed to a mental health facility due to incompetency, he is considered unavailable under subsection (d)(3) while so committed. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984); Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980). Also, a defendant is considered unavailable during that period of time when he is being examined to determine his competency. Commonwealth v. Fisher, supra; Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978). However, once determined to be competent, even while still hospitalized pursuant to the competency examination, the defendant becomes available for trial. Id

Appellant argues that his confinement to a state hospital for a competency examination pursuant to an order from a different court should not affect the ability of this court to proceed with trial, where no issue of competency has been raised in the instant case. However, the fact remains that appellant was confined to Farview State Hospital for a competency examination. We hold that pursuant to Rule 1100(d)(3)(i), a defendant is unavailable for trial when confined to a state hospital or other mental health facility for purposes of a competency examination when such confinement is ordered by any court of competent jurisdiction, whether or not defendant’s competency has been placed at issue before the court where the issue of speedy trial has been raised. Therefore, the trial court did not err in holding appellant unavailable from December 22 to January 20.

We also find no merit in appellant’s allegations that the Commonwealth failed to prove the purpose of appellant’s confinement. Mr. DiBenedetto stated that he was informed that appellant was being examined regarding his competency to be sentenced on other, unrelated charges in Montgomery County. (N.T. May 28, 1981, at 12).

The next period in question was from March 24 to April 20, 1982. On March 19, 1982, the preliminary hearing was continued until March 24. On March 24, the case was again continued, this time until April 20 for appointment of new counsel. Present defense counsel was appointed March 25.

Appellant alleges that only the period from March 19 to March 25 is properly excludable, as the defense was ready for trial as of the date of appointment of new counsel to appellant.

It is settled that a defendant’s unavailability can result in an excludable delay which is much greater than the actual time he is unavailable. Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982). A defendant is considered unavailable for trial within the meaning of Rule 1100(d) when he is unrepresented by counsel. Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979).

The instant case is similar to the facts found in Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983), where the defendant appeared without counsel at the date set for trial. Trial was relisted for a date some forty-five days later. However, counsel was appointed only three days after the initial trial date. This court held the entire period between the proposed trial dates excludable:

[T]his Court has made it clear that the period of excludable days is not necessarily measured by the length of time that a defendant was “unavailable.” Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant’s unavailability. “If the ‘unavailability’ results in an actual delay in the proceedings, that delay is automatically excluded.” Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977).

322 Pa.Super. at 530, 469 A.2d at 1118. Therefore, the entire period between March 24 to April 20, 1982 was properly excluded.

The last period of time excluded was from May 14 to May 28, 1982, based on a continuance requested by new defense counsel. Appellant argues that only those days in excess of thirty days are excludable when a defense continuance is granted. Commonwealth v. Bond, 268 Pa.Super. 49, 407 A.2d 430 (1979). However, Rule 1100(d)(3)(ii), under which appellant argues his point, has since been amended, effective as to continuances requested on or after January 1, 1982. The amended section (d)(3)(h) states that there shall be excluded from the 180 day calculations “any continuance granted at the request of the defendant or his attorney.” We therefore find this period to have been properly excluded.

In sum, the total excludable days totalled eighty-three, making the run date July 18, 1982. As trial commenced July 7, 1982, we hold appellant’s Rule 1100 issue to be meritless.

Judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . Id. § 2701.

      . Id. § 2702.

      . Id. § 903.

      . Id. § 6108.

      . The mechanical run date for Rule 1100 was Monday, April 26, 1982, as the one hundred, eightieth day, April 24, was a Saturday.

      . The Comment to Rule 1100 states, in part:
      For purposes of subparagraph (3)(i), ... the defendant should be deemed unavailable for the period of time ... during which the defendant was physically or mentally incompetent to proceed....

      . We note that the trial court did not exclude the period from the date of appellant’s competency determination to the date of his release from the state hospital.


author: POPOVICH, Judge: ROBERTS, Judge,

text:
    481 A.2d 677
    COMMONWEALTH of Pennsylvania v. Charles R. HORST, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Sept. 7, 1984.
    Petition for Allowance of Appeal Granted Mar. 4, 1985.

      John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Charles R. Horst, Sr., from the aggregate sentence of two to ten years entered on July 6, 1982, following a negotiated plea of guilty to theft by deception, issuance of a bad check, attempted homicide, unlawful restraint and criminal conspiracy. We reverse.

Appellant’s sole contention on appeal concerns the lower court’s “out of hand” denial of his motion to modify sentence for failing to set forth therein “reasons” warranting reconsideration.

A review of the record indicates that the appellant filed a written motion on July 16, 1982, the last day under Pa.R. Crim.P. 1410. “Because he was transferred to the State Correctional Institution at Camp Hill just two days after sentencing [the appellant] claimfed] he was unable to tell his legal counsel what reasons to insert in his motion. Thus, he asked[,] in effect, for leave to file reasons late. [The lower court] refused his motion .... ” (Lower Court Opinion at 2-3) The lower court did so because it perceived no provision in the law or in any rule which permitted the granting of an extension to the appellant beyond the 10-day period fixed in Rule 1410.

We believe that the lower court gives an overly strained reading to a Rule which merely requires that, in effectuating its purpose of affording the court below the first opportunity to modify a sentence, a motion be filed within 10 days after sentence. This is exactly what occurred here.

We fail to perceive how appellant’s request for an “extension” in his motion, without the presentation of any reasons therein justifying a modification of the sentence, somehow did violence to, or perverted the objective sought by, the Rule. In other words, we find that the lower court could have very easily set a period within which the motion to modify could have been ruled upon and still have avoided any jurisdictional time constraints. See Pa.R.App.P. 1701. Such action would have comported with the intent of the Rules of Criminal Procedure to achieve “simplicity in procedure” and “fairness in administration” of justice, without any undue delay. See Pa.R.Crim.P. 2; 1 Pa.C.S.A. § 1921(c)(6).

The cases are too numerous to cite in which the Commonwealth’s petitions for an extension under Pa.R.Crim.P. 1100 have been filed on the 180th day, with a hearing on said petition held days or even weeks after the run-date. Yet, there has never been a requirement engrafted upon Rule 1100 precluding a review of such timely petitions absent a showing of prejudice on the part of the accused. See, e.g., Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982) (POPOVICH, J.).

Should we do any less when we speak in terms of a defendant’s petition, which in the case at bar happens to be a timely filed motion to modify sentence? We think not, for to do so would be a reversion to a practice long since done away with, i.e., placing form over substance. Further, to adhere to the position espoused by the lower court would be to disregard the clear letter of Rule 1410 under the pretext of pursuing its spirit. See 1 Pa.C.S.A. § 1921(b).

We cannot approve of a ruling that borders on the picayune, especially when neither law nor logic supports such a result. Since we believe that the appellant’s motion to modify should have been granted, with appropriate time constraints on a ruling thereon set by the sentencing court, we reverse the actions of the court below and remand to allow the appellant the opportunity to supplement his timely filed motion. If the motion is thereafter denied, the judgment of sentence initially entered by the sentencing court may be reinstated and the appellate process can be utilized by the accused to seek review of the lower court’s actions.

Accordingly, we reverse and remand for proceedings consistent with this Opinion. Jurisdiction is relinquished.

ROBERTS, J., files a dissenting opinion.

ROBERTS, Judge,

dissenting:

I dissent and would affirm the judgment of sentence, because appellant failed to file a timely motion to modify sentence pursuant to Pa.R.Crim.P. 1410.

The motion which appellant filed contained only a request for an extension of time in order to prepare a formal motion to modify the sentence. Utterly absent from the motion was any trace of a suggestion that the sentence was in excess of statutory limits, inadequately explained, not properly individualized, or otherwise erroneously entered. Accompanying appellant’s motion was a request for entry of a proposed order stating:

“If [reasons for the motion to modify] are not set forth in detail on or before the_day of_, 1982, it will be assumed by the Court that the Defendant no longer wishes to pursue said motions.”

Appellant alleged that because of his transfer to a state correctional facility two days after sentencing, he was unable to convey his reasons for challenging the sentence to counsel. The sentencing court found this allegation to be incredible and summarily dismissed the motion for an extension.

The record reveals ample support for the sentencing court’s determination that appellant was not, in fact, unable to convey to counsel his reasons for objection to the judgment of sentence. This determination alone, which the majority has overlooked, requires that appellant be denied relief.

More importantly, however, Pa.R.Crim.P. 1410 expressly mandates that a motion to modify a sentence “shall be filed with the sentencing court within ten (10) days after imposition of sentence,” which was not done in this case. As is explained in the Comment to Rule 1410, the Rule is designed to afford the sentencing court “the first opportunity to modify the sentence” within the confines of existing practice, pursuant to which “the sentencing court is likely to have only thirty days from the imposition of sentence within which to act to modify the sentence.” The Rule is not designed, as appellant would now design it, to permit the finality of a judgment of sentence to be delayed, and the orderly appellate process disrupted, for as long as it takes the complaining party to decide to gather objections to a judgment of sentence which by their very nature are not at all difficult to identify in the first instance.

Under the Rules, a motion to modify sentence must be filed within 10 days of judgment. That was not done in this case, and the judgment of sentence should be affirmed.


author: HOFFMAN, Judge:

text:
    481 A.2d 679
    Clair BORTNER, Administrator, v. CNA INSURANCE CO. a/k/a Valley Forge Insurance Co., Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Sept. 7, 1984.

      Joseph W. Moyer, York, for appellant.
    Samuel K. Gates, York, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the lower court’s order finding that (1) appellee’s action for post-mortem work loss benefits was timely filed and (2) “stacking” of No-fault insurance benefits is permitted. We agree with appellant that stacking is prohibited in the No-fault context; however, based upon the record before us, we are unable to determine the timeliness of appellee’s action. Accordingly, we reverse in part and remand in part.

On May 21, 1977, appellee’s decedent died as a result of injuries sustained in an automobile accident on that same date. Appellee, decedent’s father and administrator of decedent’s estate, filed suit against appellant, CNA Insurance Co., on May 16, 1978, seeking to recover survivor’s benefits under the No-fault Motor Vehicle Insurance Act (No-fault Act). The lower court found in favor of appellant. Thereafter, on February 10, 1981, appellee filed the instant suit, seeking post-mortem work loss benefits on behalf of decedent’s estate. In its preliminary objections, appellant claimed that appellee’s action was barred by the No-fault statute of limitations, 40 P.S. § 1009.106(c). On October 14, 1981, the lower court ruled that the action was timely. Appellee then filed a motion for summary judgment alleging his right to “stack” the coverage of his four vehicles insured by the policy at issue. The lower court granted appellee’s motion, prompting this appeal.

Appellant first contends that appellee’s action was barred by the No-fault statute of limitations. 40 P.S. § 1009.106(c)(1) establishes the appropriate time limitation for actions seeking benefits intended to compensate either the insured or his estate. See Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982). Section 106(c)(1) provides, in pertinent part:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knowing or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

Therefore, in order to determine when the time limitation has run, we must consider when the “loss” has been sustained. In discussing post-mortem work loss benefits in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983), our Supreme Court stated:

The plain meaning of the [No-fault] Act is clear: work loss is economic detriment resulting from inability to work and earn a living, e.g., loss of a paycheck____ We hold the statute of limitations contemplates commencement of the period for bringing the action on the date the victim would next have expected to receive compensation for work he would have performed had the motor vehicle accident not occurred.

Id., 503 Pa. 540, 469 A.2d at 1384. Noting that a victim sustains economic detriment each time he or she suffers a “loss”, the Court concluded that:

[W]here as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years from any time the victim suffers work loss as a result of the accident ... (b) within two years after the victim’s accrued work loss equals the amount recoverable under the Act for work loss, ... and (c) not later than four years after the accident.

Id. See States v. Insurance Co. of North America, 327 Pa. Superior Ct. 28, 474 A.2d 1156 (1984) (en banc). In Kamperis, the Court remanded for the trial court’s determination of when decedent would have received his next paycheck or would have sustained the maximum $15,000 work loss. Similarly, in the instant case, the record is devoid of any basis upon which to determine when decedent would have sustained the maximum work loss. Such a determination is necessary because appellee filed the instant action a few months before the maximum four-year period had run. If decedent’s work loss had accrued up to the maximum $15,000 more than two years prior to the February 10, 1981 filing date, the current action would be considered untimely. Accordingly, we must remand for a determination consistent with the Kamperis dictates. Cf. States v. Insurance Company of North America, supra, 327 Pa.Superior Ct. at 33, 474 A.2d at 1158-59 (record sufficient to determine time of accural of maximum recoverable loss).

The resolution of appellant’s second contention, that the lower court erred in allowing appellee to “stack” No-fault benefits, is directly controlled by Antanovich v. Allstate Insurance Co., 320 Pa. Superior Ct. 322, 467 A.2d 345 (1983). In Antanovich, our Court clearly held that “basic loss benefits may not be stacked.” Id., 320 Pa.Superior Ct. at 324, 467 A.2d at 346. Accordingly, we must reverse the lower court’s order allowing appellee to “stack” No-fault benefits.

Reversed in part and remanded in part for a determination consistent with this opinion.

Jurisdiction relinquished.

      . Appellee contends that, because appellant failed to raise the statute of limitations defense in "new matter”, the issue is not preserved for our review. In the context of this case, we disagree. Appellant raised the defense in both its Preliminary Objections and in the instant appeal. The lower court addressed the issue in October, 1981; hence, appellee cannot claim surprise. In addition, we draw an analogy to Swartz v. Masloff, 62 Pa. Commonwealth Ct. 522, 437 A.2d 472 (1981), wherein the Commonwealth Court determined that where the plaintiffs failed to file preliminary objections challenging the defendants’ preliminary objection raising an immunity defense, the plaintiffs had waived their right to contest the manner in which the defendant raised its defense.

      . In response to his argument that, because "stacking” is permitted in the uninsured motorist context it should be permitted in the No-fault context, we direct appellee to Antanovich v. Allstate Insurance Co., 320 Pa. Superior Ct. 322, 339, 467 A.2d 345, 354-55 (1983), quoting Kirsch v. Nationwide Insurance Co., 532 F.Supp. 766, 768 (W.D.Pa.1982).