author: ROWLEY, Judge:

text:
    558 A.2d 86
    Patricia J. GRIFFIN v. Vincent A. GRIFFIN, Sr., Appellant (Two Cases). Patricia J. GRIFFIN, Appellant v. Vincent A. GRIFFIN, Sr.
    Superior Court of Pennsylvania.
    Argued May 24, 1988.
    Filed April 25, 1989.

      John P. Lawler, Stroudsburg, for appellant (at Nos. 3239 and 3556) and for appellee (at No. 3528).
    Anne C. Tiracchia, Stroudsburg, for appellant (at No. 3528) and for appellee (at Nos. 3239 and 3556).
    Before BROSKY, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

In these appeals, Patricia J. Griffin (hereinafter “Wife”) and Vincent A. Griffin, Sr. (hereinafter “Husband”), chailenge orders entered on October 22,1987, and November 17, 1987, by the trial court to compel Husband to meet the child support obligations imposed upon him by the court’s earlier order of August 3, 1987. The August 3 order directed Husband to pay $600.00 per week toward the support of the parties’ three minor children and to pay two-thirds of the college expenses of the three older children. Husband previously took an appeal from the order of August 3,1987, and it has been decided by an en banc panel of this Court. The portion of the August 3 order directing Husband to pay two-thirds of the college expenses of his oldest daughter, Cecilia, for the academic year 1987-88 was vacated and the case was remanded to the trial court for the taking of further evidence concerning Cecilia’s entitlement to support. The remainder of the order was affirmed. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989) (en banc).

In his present appeal at No. 3239 Philadelphia 1987, Husband contends that the trial court erred when, in an order entered on October 22, 1987, it found Husband in contempt for failing to pay child support as directed in the August 3, 1987 order. The court sentenced Husband to ninety days in jail but gave him the option of purging himself of contempt by complying in full with the child support order and paying arrearages and costs.

The appeals at Nos. 3528 and 3556 Philadelphia 1987 are taken from the trial court’s order of November 17, 1987, directing that payment of the August 3 order be made from various funds available to Husband in order to satisfy Husband’s obligation under the August 3,1987 order. Wife appeals, at No. 3528, from paragraph 4 of the November 17 order, which directs the United Penn Bank of Stroudsburg to pay the sum of $600.50 per week to the Monroe County Domestic Relations Office, the payments to be made from an account in the name of Griffin and Griffin, Inc., a construction firm owned by Husband and Wife. It is further directed that the payments be applied to Husband’s child support obligation. Husband cross-appeals, at No. 3556, from that portion of paragraph 1 of the November 17 order which directs Shearson Lehman Brothers, Inc. to liquidate Husband’s remaining asset in their possession, “to wit, a partnership interest,” which Husband identifies as a retirement account, so that the funds will be available to provide for the college tuition of the children for the 1988-89 school year; and from paragraph 3, which directs attorney John P. Lawler to pay to the Domestic Relations Office, to be credited to Husband’s account, $20,000 presently in Mr. Lawler’s possession and belonging to Husband, that sum allegedly having been lent to Husband by his mother.

Each of these appeals will be addressed separately. For the reasons set forth below, we affirm the contempt order appealed by Husband at No. 3239 and the portions of the November 17, 1987, order appealed by Husband at No. 3556, and we vacate the portion of the November 17, 1987, order appealed by Wife at No. 3528.

Appeal at No. 3239 Philadelphia 1987

In his appeal from the trial court’s October 22, 1987, order, Husband’s sole argument is that the trial court erred in finding him in contempt when he was ready and willing to meet his support obligation out of the funds available in the Griffin and Griffin account at United Penn Bank, but was unable to do so because Wife refused to consent to the release of the funds. The signatures of both parties are required in order to withdraw funds from the corporate account. Husband points out that the trial court, in paragraph 4 of its subsequent November 17, 1987, order, eventually ordered payments to be made toward his child support obligation from the very funds upon which he sought to draw in order to avoid a finding of contempt. Husband served a portion of the jail sentence before paying the support arrearages on November 19, 1987.

Before considering the merits of Husband’s argument, we must address two preliminary matters. The first concerns the finality of the contempt order. An appeal will lie only from a final order unless the right to appeal is expressly granted by statute or rule of court. Danko Development Corporation v. Econocast Corporation, 369 Pa.Super. 120, 124, 534 A.2d 1108, 1110 (1987). Neither the silence nor the agreement of the parties confers jurisdiction where it otherwise does not exist, and therefore we may consider the appealability of an order sua sponte. Szwecki v. Travelers Insurance Company, 324 Pa.Super. 32, 34, 471 A.2d 109, 110 (1984). Generally, an order is not final unless it puts the litigant out of court. Danko Development Corporation v. Econocast Corporation, supra. Until sanctions or imprisonment are imposed, an order declaring a party to be in contempt is held to be interlocutory and therefore not appealable. Rulli v. Dunn, 337 Pa.Super. 618, 616, 487 A.2d 480, 431 (1985). In the present case, Husband has been imprisoned, and the order in question is therefore final and appealable. Thus, we have jurisdiction to consider Husband’s appeal.

The second matter we must consider is whether Husband’s appeal is now moot, inasmuch as Husband has been released from prison after having satisfied the support arrearages. We will not decide moot or abstract questions, or enter a judgment or decree to which effect cannot be given. Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 317, 444 A.2d 1190, 1193 (1982). Husband remains subject to a continuing support order, however. A second failure to comply with the order would again subject him to contempt proceedings, at which he might raise the same general issue raised herein, namely, whether a party who is willing to satisfy a support obligation from one specific source, but not from alternative sources, can be held in contempt for failure to meet the obligation. Accordingly, we do not regard the present appeal as moot. See Barrett v. Barrett, 470 Pa. 258, 259 n. 1, 368 A.2d 616, 619 n. 1 (1977) (although appellant’s terms of imprisonment have expired, his appeals are not regarded as moot, since he remains subject to support orders and failure to comply with them might again subject him to contempt proceedings).

We now turn to the merits of Husband’s appeal, mindful that in doing so we must place great reliance on the sound discretion of the trial judge, Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. 400, 403, 469 A.2d 682, 683 (1983), and may not disturb the finding of contempt absent an abuse of discretion, Kozlowski v. Kozlowski, 362 Pa.Super. 516, 519, 524 A.2d 995, 997 (1987). Having reviewed the record and the arguments of the parties, we perceive no abuse of discretion by the trial court. Appellant cites case law to support the proposition that if an alleged contemnor has tried in good faith but is unable to comply with an order, he or she may not be punished for non-compliance. However, Husband merely asserts that he was unable to gain access to the corporate funds, not that he was unable, owing to a lack of financial resources other than the corporate bank account, to meet his support obligation. In fact, at the hearing on the contempt petition, the trial court asked Husband’s counsel, “Is it your client’s position he doesn’t have funds, other than the funds [the corporate account] you want to access?” and counsel replied, “No, your Honor. That’s not our position” (N.T., 10/22/87, at 10). This is a case of civil rather than criminal contempt, and in cases of civil contempt the general rule is that present inability to comply with a court order is an affirmative defense to be proved by the contemnor. Barrett v. Barrett, 470 Pa. at 263, 368 A.2d at 621; Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. at 403, 469 A.2d at 683. Husband has not raised, much less proven, such a defense.

Husband contends that Wife may not, by refusing to consent to the release of corporate funds, determine the source from which Husband shall meet his support obligations. It is Husband, however, who has insisted that the support payments that he has been ordered to pay shall come from one specific source and no other. Assuming, for the sake of argument, that the trial court erred in refusing to allow Husband to draw upon corporate funds, the fact remains that Husband did not assert his inability to make the required payments from other sources. If Husband is able to meet his support obligations, from whatever sources, he must do so. Because Husband refused to meet those obligations, we affirm the order of the trial court finding Husband in contempt.

Appeal at No. 3528 Philadelphia 1987

In this appeal, Wife asserts that since Husband has sufficient assets and income of his own from which to pay support, the trial court erred in ordering that his support obligation be paid, at a rate of $600.50 per week, from the corporate account. That account, Wife avers, is a marital asset subject to equitable distribution. She contends that there will be no way to make up for the depletion of this asset, and asks that we reverse the trial court’s order and direct that the sums already withdrawn from the corporate account be considered arrearages owed by Husband. $600.00, as noted earlier, is the amount that Husband was ordered to pay weekly toward the support of the three minor children; $0.50 is a service charge. The amount of funds in the corporate account is approximately $160,000.00.

As was the case with Husband’s appeal at No. 3239, we must ask at the outset whether we have jurisdiction to consider Wife’s appeal. The gravamen of Wife’s appeal is that her right to an equitable distribution of the funds in the corporate account will be jeopardized if Husband is allowed to deplete that account through court-ordered child support payments. Her request that we reverse the relevant portion of the trial court’s order is thus analogous, in some respects, to an appeal from an order denying special relief under the Divorce Code, 23 Pa.S.A. § 403. This Court has held that an order granting special relief under the Divorce Code is not a final and appealable order, and has strongly suggested that the same result will obtain for an order denying special relief. O’Brien v. O’Brien, 359 Pa.Super. 594, 595, 519 A.2d 511, 514 (1987); Shazes v. Baltuskonis, 359 Pa.Super. 599, 601, 519 A.2d 514, 515 (1987). The decisions of this Court in O’Brien and Shazes were based upon the considerations put forth by our Supreme Court in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985):

Our decision today reflects the policy of law which abhors ‘piecemeal determinations and the consequent protraction of litigation.’... The avoidance of unduly protracted divorce proceedings is consistent with the legislature’s intent to mitigate harm to the spouses and their children during this emotionally taxing experience____ [A] policy which allows piecemeal appeals from a single case serves only to increase the cost of litigation, and favors the party with the greater resources, who can strategically delay the action at the expense of the indigent party.

Id., 509 Pa. at 97, 501 A.2d at 215 (citations omitted).

However, Wife’s appeal also differs in crucial respects from the appeals at issue in O’Brien and Shazes. First, the order appealed from does not simply deny special relief, thereby raising the possibility that a marital asset will be consumed or disposed of. Instead, it affirmatively directs that the funds in the corporate account, alleged by Wife to be a marital asset, shall be applied to Husband’s child support obligations. Second, the order appealed from concerns the implementation of the prior child support order of August 3, not the parties’ divorce proceedings. Thus, the possibility of “unduly protracted divorce proceedings” that was of concern in Fried, O’Brien, and Shazes is not present here. Finally, although Wife focuses in her appeal upon the protection of a marital asset, the order in question aims to ensure the support of the parties’ children. In Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986), we explained that an order awarding child support is immediately appealable because

the child has no claim on the division of marital property. In addition, while the adults can generally look to other sources of revenue to maintain themselves during litigation, the child is totally dependent on its parents for support; its needs are immediate and continuing, and in particular, any deficiency is unlikely to be recovered. We believe the child support Order requires review to protect the interest of the child, to avoid hardship, and to assure uninterrupted maintenance by its parents.

Id., 359 Pa.Superior Ct. at 17, 518 A.2d at 322. These considerations are also relevant to an order directing that particular funds be applied toward a previously determined child support obligation. If we are to ensure the uninterrupted maintenance of the children, we must be able to review immediately not only the initial order awarding child support, but also orders seeking to enforce compliance with the parent’s support obligation through what amounts to an attachment proceeding. Otherwise, it is possible that parental assets which should have been preserved will be depleted, leaving the children vulnerable to inadequate support in the future. In ascertaining whether an order is final and immediately appealable, we must consider not only the order’s technical effect, but its practical ramifications as well. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975); Danko Development Corporation v. Econocast Corporation, 369 Pa.Super. at 125, 534 A.2d at 1111. Having done so here, we conclude that paragraph 4 of the November 17, 1987, order, appealed by Wife at No. 3528, is final and immediately appealable.

We turn now to the merits of Wife’s appeal, acknowledging that in support proceedings the role of this Court is limited to determining whether a clear abuse of discretion, as shown by clear and convincing evidence, has occurred. Koller v. Koller, 333 Pa.Super. 54, 56-57, 481 A.2d 1218, 1220 (1984). Husband concedes that he and Wife started the firm of Griffin and Griffin, Inc. (N.T., 11/12/87, at 147), that Wife owns fifty percent of the company (N.T., 11/12/87, at 198-99), and that the funds in the United Penn Bank account belong to the company (N.T., 11/12/87, at 141). He contends, however, that the parties entered into an agreement as to how the funds in the corporate account should be divided between them, with Husband receiving 75 percent of the funds and Wife 25 percent (N.T., 11/12/87, at 141), and that in fact they have already paid taxes on their respective portions of the account. Therefore, he argues, the trial court did not abuse its discretion in directing that the funds in the corporate account “be treated as though [they] had been disbursed ...” (Brief for Appellee at 13).

Wife’s response is that any agreement that may have been entered into was ignored by the parties in their day-today operations and was subsequently abrogated by their later agreement that the funds in the corporate account would not be disbursed without the signatures of both parties. She asserts, further, that the agreement to which Husband refers merely determined the distribution of the parties’ management fees, which had been placed in the corporate account, and “did not provide that the management fee received by either party would be excluded from marital property” (Brief for Appellant at 27). In fact, Husband does not expressly assert that the corporate account is not marital property. When asked by Wife’s counsel, at the hearing on Wife’s contempt petition, whether it was correct “that the ultimate distribution of that money [in the corporate account] in terms of the divorce action has not been decided yet,” Husband replied, “Well, the money has been decided because there is a signed agreement as to management fee as to who is to get what percentage of money, and I paid the taxes on my share. She has paid the taxes on her share” (N.T., 10/22/87, at 20). Husband’s argument may be taken to mean that the parties have already determined how this item of marital property will be divided.

We are without the benefit of the trial court’s reasoning on the issue before us, as the trial court has not prepared an opinion addressing the issues raised in these appeals. Instead, a note appended to the certified record refers us to the trial court’s findings of fact made in connection with the child support order of August 8, 1987, and to the orders of October 22, 1987, and November 17, 1987, in lieu of a formal opinion. Having looked to these sources for guidance, we find no indication that the trial court found as a matter of fact that the corporate bank account is non-marital property belonging in part to Husband and in part to Wife. If the court had so found, it would logically follow that the court would have limited paragraph 4 of the November 17, 1987, order to the 75 percent of the account that Husband claims as his own. Instead, paragraph 4 is not limited in terms of time, total amount of payments, or percentage of the account, thus making the total amount of funds in the account available for child support. Given the absence of any persuasive evidence to the contrary, we can only conclude that the trial court considered the corporate account to be marital property upon which Husband could draw to meet his child support obligation.

We are constrained to hold that the trial court abused its discretion in allowing a marital asset to be utilized and entirely consumed for the purpose of making child support payments required of Husband when Husband has other funds available from which to make the payments. As marital property, the corporate account will be subject to equitable distribution along with the remainder of the marital estate. In its recent decision in Sutliff v. Sutliff 518 Pa. 378, 381, 543 A.2d 534, 536 (1988), our Supreme Court held that in valuing the marital estate for the purpose of equitable distribution, “a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized.” If the parties’ corporate account is drawn upon for child support payments, its value will obviously be much lower at the date of distribution than would otherwise be the case. Although the Supreme Court allowed that “there may be situations where marital assets have been consumed or disposed of by one of the parties, thus rendering a current valuation impossible and making it necessary to rely on data that would otherwise be considered stale,” id., 518 Pa. at 382-83, 543 A.2d at 536 (emphasis added), we do not view this statement as an invitation to the trial courts to order the dissipation of a marital asset. This is especially so where, as here, Husband does not assert that he has no funds other than the marital asset from which to pay child support. We conclude that the trial court, having implicitly found the corporate bank account to be marital property, abused its discretion in ordering child support payments to be made from that account. Accordingly, paragraph 4 of the order of November 17, 1987, must be vacated. Husband’s obligation to restore to the corporate bank account the funds already disbursed as support payments is to be addressed by the trial court during the equitable distribution proceedings.

Appeal at No. 3556 Philadelphia

In this cross-appeal, Husband contends that the trial court erred in 1) ordering the liquidation of his pension fund in order to provide funds to pay for the college tuition of his children for the 1988-89 school year and 2) ordering Husband’s attorney to turn over to the Domestic Relations Office, to be credited to Husband’s account, the sum of $20,000.00 allegedly lent to Husband by his mother. The reasons on which we based our finding of finality in connection with Wife’s appeal at No. 3528 are applicable here as well, and therefore we proceed to the merits of Husband’s appeal.

Our discussion of the merits will be brief, however, for the outcome of Husband’s cross-appeal from the order of November 17, 1987, is controlled by our resolution of Wife’s appeal from the same order. In support of his argument that the trial court erred in applying the assets in question to his child support obligation, Husband offers only one reason: that there are more than sufficient funds in the Griffin and Griffin account at United Penn Bank to meet Husband’s obligation. We have already determined, however, that the trial court erred in ordering that child support payments be made from the corporate account. As we are given no other basis on which to reverse the trial court, the portions of the trial court’s order that are at issue in this cross-appeal must be affirmed.

The trial court’s order of October 22, 1987, is affirmed. Paragraph four of the trial court’s order of November 17, 1987, is vacated. The remaining portions of the order of November 17, 1987, from which appeals have been taken are affirmed. The ease is remanded to the trial court. Jurisdiction is relinquished.

      . In fact, Husband has failed to include in his brief a statement of the relief that he is requesting us to grant. We remind appellant of Pa.R.A.P. 2111, which directs appellant to include in the brief, inter alia, "[a] short conclusion stating the precise relief sought.”

      . In O’Brien v. O’Brien, 359 Pa.Super. 594, 595, 519 A.2d 511, 512 (1987), this Court stated that “an order granting or denying special relief is not appealable as of right" (emphasis added). As the order under appeal granted special relief, the assertion concerning a denial of special relief is dictum.
      We note also that Pa.R.A.P. 311, as amended December 30, 1987, effective January 16, 1988, disallows interlocutory appeals as of right from orders concerning attachments and injunctions pursuant to Sections 401(c) and 403(a) of the Divorce Code, 23 P.S. §§ 401(c) and 403(a).

      . This consideration is more than mere speculation in the present case, given Husband’s testimony that he gave $75,000 in cash to his girlfriend (N.T., 11/12/87, at 107, 109) and threw approximately $200,000 into the ocean in the belief that “it’s more important for children to realize the value of life and not live fat on the hog with money” (N.T., 11/12/87, at 120; quote at 145).

      . Husband also points out that Wife has been residing in the marital residence rent-free and that she retains investments sufficient to provide her with an annual income of more than $10,000. These facts are irrelevant to the issue before us. Wife’s occupation of the marital residence is a factor to be addressed in the equitable distribution of the marital estate, and Wife’s income has no bearing upon the sources from which Husband’s child support payments shall be made.

      . Laxton v. Laxton, 345 Pa.Super. 450, 498 A.2d 909 (1985), does not require a different result. In that case the trial court, after finding Husband in arrears on his obligation to pay alimony pendente lite, ordered Husband to remove $2,000.00 from his bank account, which was a marital asset, and forward it to Wife’s attorney to be credited against current arrears and future payments. Husband appealed, and a panel of this Court affirmed the trial court’s order. Since Wife did not challenge the trial court’s order, the case does not govern our disposition of the present appeal.

      . Husband also objects to those portions of the trial court’s order which direct him to pay $1,476.00 in fees to Wife’s counsel and which direct another attorney to pay to the Domestic Relations Office $12,-500.00 in mortgage money owed to the parties. These objections are not included in Husband’s Statement of the Questions Involved, and therefore, pursuant to Pa.R.A.P. 2116(a), we may not consider them.

      . Husband does not argue that either of the sources of funds addressed in his cross-appeal is a marital asset that should not be utilized for child support.


source: Caselaw Access Project

author: BECK, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    558 A.2d 93
    Dale Fisher OLSON, Appellee, v. Maurice A. OLSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1988.
    Filed May 4, 1989.

      Jerold S. Berschler, Norristown, for appellant.
    Thomas R. Hecker, Langhorne, for appellee.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   BECK, Judge:

This case presents the issue of whether a trial court, in a support case, must enter on the record the arithmetical calculations found in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) where one party has intentionally failed to provide accurate financial information or has withheld financial information required under the formula. We conclude that under these circumstances, a trial court is not required to place Melzer calculations on the record.

Maurice Olson (father) and Dale Fisher Olson (mother) were married in December, 1977 and divorced in September, 1983. The parties have shared custody of their son Adam. The original child support order has been subject to several modifications. By order dated July 12, 1986, father was to pay $68.00 per week plus arrearages in child support. On October 22, 1987, father filed a petition to decrease support payments based upon changed circumstances, namely, that he is unemployed and receiving unemployment compensation. On January 19, 1988, mother filed a petition for increase of support. Father also later filed a petition seeking child support. The parties stipulated that all petitions would be considered together. After a hearing on January 20, 1988, the trial court increased the order to $70.00 per week plus $10.00 per week in arrears, and denied father’s petition for support. Father appealed.

In arriving at its determination, the trial court noted that the matter was originally conferenced before a domestic relations officer. The father’s 1986 income tax return reported income of $37,763.00. However, the hearing officer properly focused on the father’s 1987 income; the income figure which would be used in calculating the Melzer formula. At the hearing, father, a registered pharmacist, testified that he was enrolled as a full-time college student, hoping to earn a master’s degree in family therapy by June, 1988. Father testified that his sole source of income for 1987 was Unemployment Compensation amounting to $228.00 per week for twelve weeks. On cross-examination, however, he admitted that on December 3, 1987, he leased a new 1988 Toyota for 60 months at $412.91 per month. The application and car lease were entered into evidence. On the application, father listed his income as $40,000 per year plus $300.00 per month as payment for part-time teaching. Father also acknowledged that he has approximately $17,000 in bank accounts, and two pieces of real estate estimated to be worth $70,000 and $20,000, respectivély.

Based upon this information, the trial court denied father’s petition for reduction of child support. On appeal, appellant/father asserts that the trial court erred in failing to consider the Bucks County Support Guidelines or to apply Melzer calculations on the record.

“In evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the trial court.” Shank v. Shank, 298 Pa.Super. 459, 462, 444 A.2d 1274, 1276 (1982) (citations omitted).

In the instant case, father alleges that the trial court erred in failing to enter on the record calculations in accordance with the formula set forth in Melzer v. Witsberger, supra. Melzer established a standard support formula under which a hearing court “plugs in” specific data regarding the incomes and reasonable financial needs of the parties in order to arrive at a fair determination of support obligation. In the usual case decisional law has mandated that the trial court enter the arithmetical calculations on the record where there is an initial entry or subsequent modification of a support order. See Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988); Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987).

The question is whether a party who intentionally provides inaccurate information or withholds necessary information should be permitted to complain on appeal that he or she was not afforded the benefits of the Melzer formula. We think not. First, we note that the Supreme Court itself recognized that the formula it set forth in Melzer was to be used as a guideline and was not meant to divest the hearing court of discretion to consider all of the relevant facts. Melzer, supra, 505 Pa. at 469-71, 480 A.2d at 995. As has been noted “a majority of the [Melzer ] Court eschewed strict mechanical formulas and endorsed a flexible approach in these [support] cases.” Ryan, supra 371 Pa.Super. at 251, 538 A.2d at 2. Next, we point out that the Superior Court has recognized that deviations from the formula may be warranted under “the particular circumstances” of a case. Shutter, supra 372 Pa.Super. at 257, 539 A.2d at 427. Although it is true that in the usual case the court must show the formula on the record, the law has recognized that in certain cases the formula need not be shown on the record. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989) (en banc) (trial court did not err in failing to make Melzer calculations where wife had no income to plug into the formula). We hold, therefore, that where the party requesting benefits of the Melzer formula intentionally withholds or fails to provide accurate information required under the formula, the court may calculate support without an on the record reference to the formula. In the instant case to decide otherwise would be tantamount to rewarding father for withholding pertinent information. Since father was the only source of the requisite data, it was his burden to produce the information.

The same rationale applies to father’s argument that the trial court erred in not considering the Bucks County Support Guidelines on the record. The county support guidelines were promulgated pursuant to 23 Pa.C.S.A. section 4322:

Support guidelines.

The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for the unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

Clearly, as with Melzer, application of the county support guidelines requires both parties accurately to present all relevant financial information, which husband in this case failed to do. He should, therefore, not be permitted to claim any benefit from application of the county guidelines.

The trial court’s decision in this case was based upon its assessment of father’s credibility. The court did not find credible father’s testimony that his weekly income consisted of his unemployment compensation stipend plus a minimum income from the rental properties. Noting in particular the fact that appellant committed to pay $412.91 per month to lease a 1988 Toyota, as well as admitting to having given false information on his lease application, we find no abuse of discretion by the court.

As appellant failed to supply the trial court with the proper financial information, he lost whatever advantage might have accrued to him from the use of the Melzer formula and the county support guidelines.

The order of the trial court is affirmed.

OLSZEWSKI, J., files dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent.

Although I do not condone father’s withholding of material evidence in the instant case, I cannot conclude that the trial court may be excused from following our Supreme Court’s mandate in Melzer v. Witsberger, 505 Pa.Super. 462, 488 A.2d 991 (1984), and the Bucks County guidelines.

In her petition to increase, mother alleged that:

Since the date of the entry of the order of [February of 1983], there has been a substantial and material change of circumstances including but not limited to the following:
(a) [Father’s] income has increased.
(b) The cost of living has increased.
(c) Specific expenses for said minor child have increased in the nature of school, clothing, food, shelter and medical.

Petition to Increase at 1. The trial court granted the instant petition by order dated January 20, 1988. On appeal, father maintains that the trial court erred in entering an order modifying an existing child support order: (1) without considering the Bucks County guidelines; (2) without applying, on the record, the Melzer formula; and (3) without entering specific findings regarding the incomes of both parties and the reasonable needs of the children.

This Court has required that the Melzer formula and the county guidelines consistent with Melzer be considered in entering a subsequent modification of a child support order. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). The majority claims that it was impossible for the trial court to accurately employ the Melzer formula and county guidelines because appellant withheld information regarding his financial status. Being the only source of this information, the majority finds that father, on appeal, cannot complain of the trial court’s non-compliance with Melzer. I believe the majority misplaces the burden of proof on father. Mother filed a petition to increase which alleged that father’s income had increased. It was incumbent upon mother to prove the facts necessary to support the allegations of changed circumstances set forth in the petition. See Banks v. Banks, 275 Pa.Super. 439, 446-48, 418 A.2d 1370, 1374 (1980) (trial court may not order reduction in child support unless petitioner has proved by competent evidence that there is a material and substantial change in his financial circumstances). When father was not forthcoming with a current tax return and income and expense statement, these items should have been subpoenaed or requested by mother by motion to the court. If father refused to comply, appropriate sanctions could be imposed by the trial court. In a child support action, we are concerned with the welfare of the child. See Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974) (“The purpose of a support order is the welfare of the children and not the punishment of the father.”). To ensure the welfare of the child, it is essential that all information pertinent to ascertaining the amount of support is before the hearing court. I, therefore, would remand for an evidentiary hearing and for the trial court to enter calculations consistent with the Melzer formula and the Bucks County guidelines.


author:
POPOVICH, Judge:
      WIEAND, Judge,

text:
    558 A.2d 97
    COMMONWEALTH of Pennsylvania, Appellee, v. Christopher L. WEAVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1989.
    Filed May 4, 1989.

      Michael Krout, York, for appellant.
    Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered by the York County Court of Common Pleas following the appellant’s conviction on the charge of Driving Under the Influence of Alcohol. 75 Pa.C.S.A. § 3731(a)(4) (“amount of alcohol by weight in the blood of the person is 0.10% or greater.”). On appeal, the appellant, citing Com., Dept. of Transp. v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), alleges that the lower court erred by not suppressing the results of his blood test which was performed after he had already submitted to a pre-arrest breath test. He also contends that the lower court erroneously instructed the jury concerning the validity of the blood alcohol test. Finding no merit in either contention, we affirm.

Following a one car accident, the appellant, who was operating the vehicle, was interviewed by the investigating officer. Smelling alcohol on the appellant’s breath, the officer advised the appellant that he suspected the appellant might be under the influence of alcohol and asked the appellant to undergo a field sobriety test. The test included a heel-to-toe walk test and a touch-your-nose test. The appellant did not perform the test satisfactorily, and the officer asked the appellant to take a pre-arrest breath test. The appellant agreed. The on-the-scene test resulted in a .19% blood alcohol content. The officer thereafter arrested the appellant for driving under the influence of alcohol. The appellant was placed under arrest and taken to Hanover General Hospital where he consented to a blood alcohol test. The blood test resulted in a .18% blood alcohol content. This blood test result was admitted into evidence at the appellant’s trial while no mention of the pre-arrest breath test was made.

The appellant relies on McFarren, supra, in an attempt to have the result of his blood test suppressed. In McFarren, supra, our Supreme Court stated:

In order to justify a second intrusion [i.e. blood alcohol test], the police offer must establish circumstances which support the reasonableness of a second search. To hold otherwise would subject an individual to “unreasonable searches and seizures” in violation of Art. 1, § 8 of our Constitution____ However, requiring a blood test after completing a breathalyzer solely to enhance the evidence and guarantee a conviction is not “reasonable” under Art. 1, § 8 of our Constitution.

McFarren, 525 A.2d at 1188.

However, we find that McFarren, supra, is inapposite presently. The appellant was not subjected to two separate blood alcohol tests pursuant to 75 Pa.C.S.A. § 1547(a). Rather, the appellant first submitted to a pre-arrest breath test as expressly authorized in 75 Pa.C.S.A. § 1547(k) which states:

A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a devise approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether of not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e).

As the Commonwealth Court stated in Wall v. Commonwealth, 114 Pa.Cmwlth. 397, 400-401, 539 A.2d 7, 9 (1988), “[W]e conclude that a preliminary breath test in the field, performed on an instrument which detects the presence of alcohol, is not one of the chemical tests of breath, blood or urine deemed to be consented to by section 1547(a).” The pre-arrest breath test is simply another form of field sobriety test used by police officers when deciding whether a driving while intoxicated arrest should be made. Since the appellant was not subjected to two chemical tests of his blood as defined in 75 Pa.C.S.A. § 1547(a), we find that McFarren, supra, does not apply and the lower court correctly allowed the results of the appellant’s blood test to be admitted into evidence. Moreover, we further question the dubious applicability of McFarren, supra for two reasons. One, McFarren, supra, addresses the law only as it applies in the civil context of license suspension. And two, McFarren, supra, does not address the situation where the driver consents to more than one test.

Turning now to the appellant’s second allegation of trial court error, we focus our attention upon the trial court’s instruction to the jury. The appellant alleges the court erroneously directed the jury that they must accept the blood test results and, by so instructing, usurped the jury’s fact finding function. That portion of the instruction alleged to be erroneous reads:

Now, there is no question that the Commonwealth should bring in each and every person who ever touched the test. If that test is otherwise valid in your opinion by virtue of the proceedings which have been followed, then it is a valid conclusion. (T.T., p. 63).

Immediately following the jury instruction, defense counsel approached the bench and specifically objected to this portion of the jury charge. (T.T., p. 66-67) Thereafter, the court supplemented its instruction as follows:

Now, I think we’ve covered the field as to the alternatives here, and I’ve indicated that you should return your verdicts, and this is at the request of both Counsel, as to both charges. They may be the same or they may be different. You have the authority to make your decision as to the way in which those verdicts are returned, just as you have the authority to accept or reject any testimony or any evidence that has been given to you.
As is indicated, you are the finders of facts in these cases, and therefore, the question of the blood alcohol returned, the question of the amount thereof, the question of driving under the influence to the extent that the party’s under the influence and therefore an unsafe driver, all these matters are questions for you to give attention to.
So, with that, we then will ask you to retire and determine the results of your decisions in these cases. Thank you. (T.T., p. 68)

Following this supplemental instruction, defense counsel took no exception to the instruction and, therefore, has waived his objection to the charge. Pa.R.Crim.P. Rule 1119(b); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 623-624, 482 A.2d 1044, 1047 (1984). By not objecting after the court’s supplemental instruction, the appellant, in effect, indicated he was satisfied that the supplemental instruction cured any defect in the main body of the instruction. Moreover, the appellant’s contention is patently without merit. When reviewing an allegation of erroneous instruction, we read the jury charge as a whole. It is the general effect of the charge that controls. Ignatavich, 482 A.2d at 1047; Commonwealth v. Stanton, 316 Pa.Super. 397, 400-401, 463 A.2d 19, 21 (1983). Our review of the instruction as a whole reveals that the instruction accurately reflected the law and properly guided the jury in its deliberation, and, thus, a new trial is not warranted. Commonwealth v. Person, 345 Pa.Super. 341, 344-346, 498 A.2d 432, 434 (1985).

Having found that both of the appellant’s allegations of error are without merit, we affirm his judgment of sentence.

Judgment of sentence affirmed.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I concur in the result. Although I disagree with the majority’s holding that an erroneous jury instruction which has been called to the trial court’s attention is waived by a subsequent failure to object to an inadequate or imperfect attempt by the court to correct the error, I perceive in this case no erroneous instruction which requires the granting of a new trial. Moreover, I agree fully with the majority’s determination that appellant’s blood test was properly received in evidence. Therefore, I agree that the judgment of sentence must be affirmed.

      . In Commonwealth v. Bull, 382 Pa.Super. 559, 555 A.2d 1341 (1989), this Court, addressing an issue identical to that presented herein, reached the same result as we do presently.


author: OLSZEWSKI, Judge:

text:
    558 A.2d 99
    NOBLE C. QUANDEL CO., Appellee, v. SLOUGH FLOORING, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1988.
    Filed May 2, 1989.

      Thomas A. Beckley, Harrisburg, for appellant.
    Edward E. Kopko, Pottsbille, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered upon a jury verdict by the Court of Common Pleas of Dauphin County in favor of appellee (hereinafter “Quandel”), and against appellant (hereinafter “Slough”). Slough presents two issues for review: (1) whether the trial court erred in its charge to the jury; and (2) whether the trial court abused its discretion relating to the admission of Quandel’s damages.

Quandel is a general construction company. In December of 1979, Quandel contracted with Greenwood School District in Perry County to build a school. Part of the school building included a multi-purpose room with a synthetic floor. The construction of the floor was beyond the expertise of Quandel, therefore, it subcontracted with Slough Flooring, Inc. to do the work.

Quandel was responsible for pouring a cement sub-floor, which had to be within certain tolerances before the synthetic floor could be poured by Slough. Quandel was unable to bring the sub-floor within the specified tolerances and entered into a separate cost-plus contract with Slough to level and pour the floor. Slough poured the floor; however, at certain spots delamination occurred. Eventually, the floor was torn up and replaced.

Quandel then sued Slough for damages arising from Slough’s alleged breach of its subcontract agreement with Quandel. Slough, in a separate action, sued Quandel for consequential damages arising from Quandel’s alleged breach of the same subcontract. By stipulation of the parties, the cases were consolidated for trial.

The case was tried before a jury on June 8, 1987, resulting in a verdict in favor of Quandel and against Slough in the amount of $28,688.85. Slough then filed post-trial motions which were denied by the trial court on February 29, 1988. On March 28, 1988, judgment was entered on the jury verdict. Slough then filed the instant appeal.

Slough presents two issues for review: (1) whether the trial court erred in its charge to the jury; and (2) whether the trial court abused its discretion regarding the admission of Quandel’s damages.

Slough first argues that the trial court’s charge to the jury was erroneous in two respects: first, the trial court improperly vested responsibility for interpreting the terms of a clear written agreement to the jury; and second, it improperly instructed the jury that all final responsibility was Slough’s pursuant to the contract terms. Slough asserts that the clear written language provides that Quandel was to be responsible for the condition of the sub-floor and that Slough was to be responsible for the synthetic floor. Despite these terms, however, Slough argues that the trial court instructed the jury that it could find Slough responsible for both the sub-floor and the synthetic floor. According to Slough, this was error as insufficient evidence was introduced at trial to indicate a modification of the clear written agreement. Therefore, Slough argues that the instruction was erroneous. We disagree.

When a challenge is made as to the sufficiency of a charge to the jury, our function as an appellate court is to examine the charge in its entirety against the background of the evidence to determine whether error has been made which prejudices the complaining party. Unless we conclude that the charge as a whole was erroneous and may have prejudiced the appellant, we will not reverse for isolated inaccuracies. In making such a determination, we are careful to construe the offending portions in their proper context. Reimer v. Tien, 356 Pa.Super. 192, 206, 514 A.2d 566, 573 (1986).

Keeping this standard in mind we must reject Slough’s initial claims. In regards to Slough’s first argument, it is well-settled that where conflicting evidence is presented concerning parol modification of a contract, it is within the province of the jury to define its terms; unless the proponent’s own version fails to support an alleged modification, the trial court should not declare that a modification does not exist. East Texas Motor Freight, Diamond Div. v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984). In the present case, our review of the record indicates that conflicting evidence was introduced regarding modification of the existing contract between the parties. Under these circumstances, we find no error on the part of the trial court for instructing the jury that they were to determine the effect of the alleged modification, if any, on the responsibilities of the parties.

Regarding the second argument, Slough cites several excerpts from the jury instruction and claims that they are erroneous and prejudicial. Upon careful review of the entire jury charge, however, we fail to find any merit in this contention. These same excerpts, when placed in their proper context and read together with the complete charge, do not demonstrate error or prejudice. Accordingly, we reject this argument.

Next, Slough contends that the trial court abused its discretion by admitting certain evidence of Quandel’s damages. Two arguments are advanced: first, that testimony elicited from Quandel’s president concerning the amount of damages violated the “best evidence” rule; and second, it was improper to allow Quandel to submit corporate records as evidence of damages during rebuttal. As an alternative, Slough argues that the admission of both types of evidence together resulted in prejudice on its part.

Initially, Slough contends that the testimony offered by Quandel’s president regarding damages violated the “best evidence” rule. Slough asserts that Quandel’s president had no independent knowledge of the damage figures, but instead testified from the complaint as to amounts which were derived from corporate records not available in court during his examination. Under these circumstances, Slough argues that Quandel offered no admissible proof of damages as part of its case-in-chief.

The trial court counters that Slough’s claim is without merit. In so doing, the court noted that Quandel’s president was personally involved in negotiating all phases of the subcontract with Slough, and that all of the cost figures supplied in preparation of Quandel’s case were prepared by him. According to the court, while the witness did not testify from Quandel’s business records, he nevertheless was competent to testify regarding any alleged damages suffered by Quandel. We agree.

Slough has clearly misconstrued the meaning of the “best evidence” rule. The rule itself requires a party who seeks to prove a writing for the purpose of establishing its terms to produce the writing unless the nonfeasability of production is satisfactorily established. Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 (1978). Application of the rule is limited to those situations where the contents of the document are at issue and must be proved to make a case or provide a defense. Mars v. Meadville Telephone Co., 344 Pa. 29, 23 A.2d 856 (1942); Perry v. Ryback, 302 Pa. 559, 153 A. 770 (1931); Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 454 A.2d 599 (1982); Warren v. Mosites Construction Co., supra. Where the contents of a document are merely evidence of, rather than material to, issues in the case the rule is inapplicable. Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983).

Pennsylvania courts have had occasion to determine the admissibility of evidence under circumstances similar to the situation with which we are now confronted. In Mars v. Meadville Telephone Co., supra, a widow was permitted to testify in regards to her deceased husband’s earnings from her own knowledge without first producing his record books. Similarly, in Ragnar Benson, Inc. v. Bethel Mart Associates, supra, a project manager was permitted to testify from his own recollection regarding the amount of damages incurred in an action for breach of contract without first having to authenticate certain bills that were used to refresh his memory. The respective Courts in both cases reasoned that the issue was not the written content of the documents but the amount of damages. We find this reasoning persuasive in the case at bar.

In the present situation, Quandel made no attempt to prove the contents of its business records. Quandel, through the testimony of its president, sought only to prove the amount of damages it had incurred through the failure of the contract. During his testimony, the witness noted his responsibilities as the chief executive officer of Quandel and his knowledge of all of its financial matters. Although Quandel’s complaint was used to refresh the witness’ memory, we are satisfied that his testimony was from his own recollection. In making this conclusion, we note that the complaint in this matter was filed close to five years prior to his in-court testimony. Therefore, we agree with the trial judge that the witness was competent to testify concerning any damages sustained without the production of Quandel’s business records.

Finally, Slough argues that the trial court abused its discretion by allowing Quandel to introduce its corporate records in rebuttal after it had rested its case-in-chief. Slough claims that this evidence was improper for the rebuttal stage and should not have been allowed in over its objection. Slough stresses that the trial court, by allowing introduction of the business records in this manner, has given Quandel free license to unduly bolster its damage claims. We disagree.

We take note at the outset that Slough is mistaken as to what actually transpired during the trial proceedings. As our review of the record indicates, the corporate records were not allowed into evidence during the rebuttal stage; rather, Quandel was allowed to reopen its case-in-chief. Thus, the question we must address is whether the trial court abused its discretion by allowing Quandel to reopen its case-in-chief to present additional evidence of damages.

Turning to the record, we note that it was Slough who initially wanted the records produced. Slough had two purposes in mind: first, Slough claimed that the law required the records be present in the courtroom while the witness was testifying as to damages; and second, Slough contended that without the records, it could not properly cross-examine the witness. With respect to the first purpose, the trial court properly concluded that the records need not be produced in order for the witness to testify. As for the second purpose, however, the court agreed with Slough despite the fact that in the six years the case had been pending, Slough made no attempt to secure the records. Accordingly, at the end of the second day of testimony the trial judge stated that before he would allow Quandel to rest its case, he would extend to Slough the right to examine Quandel’s business records and further cross-examine the witness with respect to those records. The next day, however, instead of recalling Quandel’s president or reviewing the documents which were made available, Slough put on its case-in-chief. After Slough rested, Quandel offered to recall the witness to introduce the business records into evidence. The trial judge agreed, and stated that Slough had the right to cross-examine the witness if he wished. Slough declined. On appeal, Slough claims this was error. We disagree.

It is well-settled that the decision of a trial judge to permit a party to reopen its case will not be reversed on appeal absent an abuse of discretion. Perkiomen Twp. v. Mest, 513 Pa. 598, 522 A.2d 516 (1987); Beneshunas v. Independence Life & Accident Insurance Co., 354 Pa.Super. 391, 512 A.2d 6 (1986); Warren v. Mosites Construction Co., supra. Under the present circumstances, we believe that the record reflects a full justification for the actions of the trial judge. Accordingly, we find no abuse of discretion on his part in allowing Quandel to reopen its case-in-chief in order to introduce its corporate records on the issue of damages. Therefore, we are compelled to reject his final claim.

Having found no basis upon which to grant the relief requested by Slough, we have no alternative but to affirm the order of trial court.

Judgment affirmed.

      . Appellee Quandel has failed to provide this Court with a brief in this matter. Accordingly, we resolve these issues based on the brief of appellant and the record.

      . In light of our disposition of Slough’s contentions relating to Quandel’s damage testimony, we need not dwell on appellant’s final contention that the allowance of both types of evidence prejudiced its case except to say that we find the same without merit.


text:
    558 A.2d 103
    Pauline LOOMER, Executrix of the Estate of Walter Loomer, Louise Miller, Administratrix of the Estate of Donald Miller v. M.R.T. FLYING SERVICE, INC., Cessna Aircraft and James D. Miller, t/a Miller Aviation. Appeal of Pauline LOOMER, Executrix of the Estate of Walter Loomer.
    Superior Court of Pennsylvania.
    Argued March 8, 1989.
    Filed May 2, 1989.

      Richard F. Stevens, Allentown, for appellants.
    Edward C. German, Philadelphia, for appellees.
    Before WIEAND, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Pauline Loomer, executrix of the estate of Walter Loom-er, appeals from an order of the Court of Common Pleas of Bradford County, entitling Loomer to the insurance coverage provided to a “passenger” pursuant to the terms of an insurance policy.

On September 20, 1975, Walter Loomer was piloting an aircraft leased to him by the M.R.T. Flying Service, Inc. (“MRT”). The plane was also occupied by Donald Miller and David Lennington. Due to a defective fuel tank, the fuel began leaking from the plane. In response, Loomer made an emergency landing in a field. The landing resulted in the death of Loomer and the front seat passenger, Miller.

Thereafter, Pauline Loomer brought suit against MRT. Following a lengthy jury trial, Pauline Loomer obtained a verdict in the amount of $708,306.00. The court then granted Mrs. Loomer an additional $186,870.00 for delay damages against MRT.

Following the exhaustion of all appellate remedies by MRT, Pauline Loomer filed a writ of execution against MRT, joining Gulf Insurance Company (“Gulf”) and Aviation Adjustment Bureau, Inc., as garnishees. Gulf had written the original insurance policy in question. The policy provided a maximum coverage in the amount of $50,000 ($50,000 each person; $150,000 each occurrence) for each passenger injured as a result of an occurrence arising out of the use of the aircraft under Coverage “C” in the policy. Coverage “A” of the policy, however, provides maximum coverage in the amount of $100,000 ($100,000 each person; $300,000 each occurrence) for non-passengers. Accordingly, the issue before the trial court was whether Loomer, the pilot of the airplane, was entitled to insurance coverage as a passenger ($50,000) or as a non-passenger ($100,000), pursuant to the terms of the insurance policy provided by Gulf. In addressing this issue, the trial court determined that Loomer was both a pilot and passenger since he was on the aircraft for the purpose of riding therein. Subsequently, Mrs. Loomer filed the instant appeal.

On appeal, Mrs. Loomer contends that the trial court erred in holding that her husband was a passenger. She argues that her husband, who was commanding, flying, operating, navigating, and otherwise controlling the aircraft, was not on the airplane for the purpose of merely riding therein and, as such, should not be placed in the same category as the other two occupants of the plane.

The construction of an insurance policy is a question of law which must be resolved by the courts. Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). Initially, this Court must determine whether the terms of the insurance contract are ambiguous. Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 496 A.2d 28 (1985). A provision of an insurance contract is “ambiguous” if reasonably intelligent people could differ as to its meaning. Musisko, supra. Where a provision of an insurance policy is ambiguous, it will be construed in favor of the insured. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Where the terms of the insurance contract are not ambiguous, however, this Court must read the policy in its entirety and give the words therein their plain and proper meanings. Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 531 A.2d 487 (1987). In doing so, courts do not wish to convolute the plain meaning of a writing nor bestow upon the words a construction which is belied by the accepted and plain meaning of the language used. DiFabio v. Centaur Insurance Co., 366 Pa.Super. 590, 531 A.2d 1141 (1987). As such, this Court’s initial determination is whether the terms of the policy are ambiguous.

In pertinent part, the provisions of the insurance contract are as follows:

1. Definitions — “passenger,” means any person or persons while in, on or boarding the aircraft for the purpose of riding therein or alighting therefrom following a flight or attempted flight therein.
Coverage A — Bodily Injury, Liability Excluding Passengers. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death, at any time resulting therefrom, sustained by any person excluding any passenger, caused by an occurrence arising out of the ownership, maintenance or use of the aircraft.
Coverage C — Passenger Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death, at any time resulting therefrom, sustained by any person, caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.

In reviewing these provisions it is apparent that the language therein is not ambiguous. The provision which is of particular interest to this case is that which defines “passenger.” Clearly, this provision applies to those in, on, or boarding the airplane who wish to ride in the airplane. If reasonable people were to read this language, they would not differ as to its meaning. For this Court to hold otherwise would be to dissect and distort the plain language within the policy. See, e.g., Griffith v. Continental Casualty Co., 506 F.Supp. 1332 (N.D.Tex.1981) (held that “passenger” was not ambiguous despite plaintiff’s allegations); Morgan v. Continental Casualty Co., 382 So.2d 351 (Fla.Dist.Ct.App.1980) (held that the term, “riding as a passenger in an aircraft” was not ambiguous); Paul Revere Life Insurance Co. v. First National Bank In Dallas, 359 F.2d 641 (5th Cir.1966) (held that the term “passenger” is not inherently ambiguous when used in its common or popular meaning). Pursuant to this determination, the next issue to be addressed involves the application of the plain and proper meaning of the relevant terms within the policy. Koval, supra.

Although the determination of this issue has escaped the scrutiny of Pennsylvania courts, it has been addressed by other jurisdictions. In Paul Revere, supra, for example, the court was faced with the determination of whether the pilot of a civilian airplane was a “passenger” within the terms of the policy which served to exclude non-passengers from coverage. The court determined the common meaning of “passenger” does not include the pilot. Similarly, in Griffith, supra, the Texas court held that the definition of “passenger” does not include the pilot since the pilot does not merely ride in the airplane, but has the duty of operating the airplane. Further, in Morgan, supra, the Florida court also held that “passenger” does not embrace the term “pilot.”

The only relevant and significant difference between the instant case and the cited cases is that the instant case provides a definition of the word “passenger.” This definition serves only to support the holdings of the other cases since it fits within the ordinary usage of “passenger.” Although these cases were borne in other jurisdictions, the ordinary meanings given to the terms “passenger” and “pilot” can easily transcend state boundaries. Just as the same dictionary can be shared by residents of different states, the ordinary meanings of the words “pilot” and “passenger” can also be shared.

Appellees, however, contend that the outcome of the instant case is controlled by Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953), which held that the insurance policy which indemnified the insured for loss resulting from injury sustained by any officer, employee, or guest in consequence of “riding as a passenger in, boarding, alighting from, making a parachute jump from (for the purpose of saving his life), or being struck by” a specified airplane owned by the insured and piloted by an authorized person, covered the death of the airplane’s pilot. This determination was based upon the rule of construction which serves to construe the policy terms in favor of the insured, since the court found the language of the policy to be ambiguous. Thus, despite the court’s concession that the phrase “riding as a passenger in” suggested the meaning of “passenger” as a non-operative of the plane, the court held otherwise. This case does not appear to support appellees’ position, however, for if this Court finds that the language in the instant policy is ambiguous, it would be construed in favor of the appellant and against the appellees. Regardless, since said language has been found to be unambiguous, this Court is obligated to give the terms therein their normally accepted meanings.

The aforementioned case law encourages this Court to determine that the ordinary meaning of the word “passenger” does not include the pilot. Although this case law is persuasive, this Court will proceed to conduct its own analysis designed to determine the ordinary meanings of the relevant terms within the instant policy.

The American Heritage Dictionary defines “passenger” as “... A person who travels in a train, airplane, ship, bus, or other conveyance, without participating in its operation.” This definition harmoniously interacts with the definition contained within the policy at bar. At the very least, it is not in conflict with the policy’s definition of “passenger.”

Further, Webster’s Ninth New Collegiate Dictionary defines the word “pilot” as “... one who handles or is qualified to handle the controls of an aircraft or spacecraft.” As demonstrated, these words are not interchangeable. Further, when using the word “pilot” within its policy, Gulf did not interchange the words “pilot” and “passenger,” since the word “pilot” is used separately in an unrelated clause of the policy. This demonstrates Gulfs intent to differentiate between “pilots” and “passengers.” Gulf could have chosen to include “pilots” in their definition of “passengers” had they so desired.

To hold that a pilot, while in the process of flying a plane, is a passenger would be to unnecessarily twist the ordinary meaning of the word “passenger.” As such, based upon the aforementioned case law and the prior analysis, this Court finds that Loomer was not a passenger for purposes of the insurance policy and, therefore, should be included in Coverage “A,” which relates to non-passengers.

Accordingly, this Court reverses the decision of the trial court.


text:
      558 A.2d 107
    COMMONWEALTH of Pennsylvania v. Robert W. BLACKWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1989.
    Filed May 8, 1989.

      James R. Protasio, Williamsport, for appellant.
    Brett O. Feese, District Attorney, Williamsport, for Com., appellee.
    Before OLSZEWSKI, BECK and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal nunc pro tunc from a judgment of sentence after conviction for attempted rape, indecent assault, simple assault, terroristic threats and burglary. Appellant raises two issues for our consideration: first, whether the trial court erred in denying appellant’s motion to suppress identification due to an impermissibly suggestive line-up; and second, whether the trial court erred in denying appellant’s motion to dismiss on Rule 1100 grounds. For the following reasons, we vacate the order of the trial court granting appellant the right to file an appeal nunc pro tunc.

Appellant had originally been convicted in this matter, following a jury trial, on September 15, 1983. Post-verdict motions were denied and appellant was sentenced to ten-to-twenty years’ imprisonment. An appeal to this Court was filed on behalf of appellant; however, it was dismissed due to counsel’s failure to file a brief. Thereafter, appellant filed a petition under the former Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. (repealed). Finding that appellant had been denied his right of appeal, the court granted him the right to appeal nunc pro tunc. New counsel was appointed and a brief filed; however, the two issues raised herein, while placed in statement of questions, were never argued in the body of the brief. In affirming the judgment of sentence, this Court found these two issues to be waived.

On April 18, 1988, appellant filed another petition, this time under the new Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. New counsel was appointed and on June 21, 1988, an amended PCRA petition was filed. Both petitions alleged the ineffectiveness of appellate counsel for failing to brief the aforementioned issues. The hearing court, after consideration of this petition, granted the request and gave leave to appellant to file an appeal nunc pro tunc limited to those issues deemed waived by this Court. Appellant then filed the instant appeal.

In its brief, one of the Commonwealth’s contentions is that the hearing court erred in granting the relief requested by appellant in his second post-conviction petition. In support of this argument, the Commonwealth points to our Supreme Court’s recent decision in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). Before we can reach the merits of appellant’s issues, we must address the Commonwealth’s claim.

In Lawson, the defendant filed a petition under the former Post Conviction Hearing Act alleging ineffectiveness of counsel and was granted permission to file post-verdict motions nunc pro tunc. Following denial of these motions, an appeal was taken but denied. Thereafter, the defendant filed pro se a second PCHA petition alleging ineffectiveness of counsel for failure to raise a Rule 1100 issue. This petition was denied without a hearing. Additional pro se petitions were filed and denied; however, with the assistance of counsel, the defendant filed still another PCHA petition which was granted by the hearing court. This Court affirmed.

In reversing the order of this Court, our Supreme Court went on to state: “We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Id., 519 Pa. at 513, 549 A.2d at 112. In deciding whether there was a miscarriage of justice present under the facts, the Court noted:

With regard to the instant case, the petitioner does not attack the fairness of the trial that resulted in his conviction, nor does he even assert that he was innocent of the criminal charges involved. What he seeks to do is to negate his obligation to stand trial, and in that effort relies on a procedural technicality. There has been no showing of a miscarriage of justice that would warrant entertaining his repetitive application for collateral relief. This petition should have been dismissed by the court without a hearing.

Id.

While Lawson was decided by utilizing the provisions of the former Post Conviction Hearing Act, we find the same rationale applicable to the facts in the case at bar. Several reasons support this finding. First, the sweeping language used by the Court could pertain to petitions filed under the former as well as the new act. Moreover, under the new act, in order to be eligible for relief, a petitioner who claims that counsel was ineffective must plead and prove that counsel’s stewardship “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Finally, the Court in a comment to the newly enacted Pa.R.Crim.P., Rule 1507, 42 Pa.C.S.A., clearly stated that a second or subsequent post-conviction petition should be summarily dismissed where the defendant fails to meet the Lawson standard. Clearly then, the mandate of Lawson is applicable to petitions filed under the PCRA.

Turning to the facts of the case at bar, we find that the hearing court erred in granting the relief requested by appellant. Appellant’s claim regarding Rule 1100 is identical to the claim raised in Lawson, and pursuant to that Court’s reasoning as well as the statutory authority set forth in 42 Pa.C.S.A. § 9543(a)(2)(ii), we hold that the proper procedure would have been to deny this issue without a hearing. We find the same disposition applicable to appellant’s claim regarding suppression of his pre-trial identification. While it is true that, under extreme circumstances, a pre-trial identification procedure can undermine the reliability of the adjudication (see e.g., Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982)), our review of the record reveals that such is not the case in the present situation. Therefore, this issue should have been summarily denied as well.

Order of the hearing court is vacated and the petition is dismissed. Jurisdiction relinquished.

      . The Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 227, 229-232. Since appellant’s second petition was filed after the effective date, it is controlled by the provisions of the PCRA.

      . In his concurring opinion, Justice Papadakos emphasized that the phrase “miscarriage of justice" is synonymous with the standard of "prejudice" enunciated in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In defining both, Justice Papadakos noted:
      A miscarriage of justice, like prejudice, can only occur where it is demonstrated that a particular omission or commission was so serious that it undermined the reliability of the outcome of the proceeding. Where a conviction can be shown to result from a breakdown in the adversary process, the conviction rendered is unreliable. Such a conviction is obviously prejudicial to the defendant and, if allowed to stand, is a miscarriage of justice.

        Commonwealth v. Lawson, 519 Pa. 504, 514, 549 A.2d 107, 112 (1988) (Papadakos, J., concurring).

      . This is especially true in light of recent concerns involving repetitive post-conviction petitions. See e.g., Commonwealth v. Hagood, 516 Pa. 340, 532 A.2d 424 (1987); Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

      . The Lawson Court took specific note of this section and the past practices of our courts concerning the problem of repetitive petitions under the former PCHA.

      . Previous Rule 1507 was rescinded on February 1, 1989, as unnecessary in view of the enactment of the PCRA. The present Rule 1507, which takes effect July 1, 1989, replaces former Rule 1504.

      . In the present case, not only was the victim able to identify appellant some two years after the commission of the instant crimes, but shortly after the attack she was able to describe a rather unique tattoo on appellant’s arm. At trial, she was also able to identify this tattoo after the trial court requested that it be displayed.

      . Even if we were to conclude that appellant’s claims were properly before this Court, we would still be unable to grant appellant his requested relief. After a thorough review of the record, the briefs of the parties, and the applicable law, it is our determination that the claims raised by appellant are completely lacking in merit. Therefore, for either reason, appellant’s claims must be denied.


author: MONTEMURO, Judge:

text:
    558 A.2d 109
    Seija K. GORFTI, In her own right and as Parent and Natural Guardian and Ahmed Gorfti, In his own right and as Parent and Natural Guardian of Dean Gorfti and Michael Gorfti v. Bruce B. MONTGOMERY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1989.
    Filed May 12, 1989.

      James M. Penny, Jr., Philadelphia, for appellant.
    A. Charles Peruto, Sr., Philadelphia, for appellees.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order removing a non-suit and granting appellee a new trial in a medical malpractice action.

At the end of May, 1983, appellee Seija K. Gorfti, then 34 years old, visited appellant, her regular gynecologist, complaining of a lump in her left breast. Upon examination, the nodule proved to measure less than one centimeter. Appellant ordered a mammogram which was performed two weeks later, and interpreted by the radiologist as demonstrating normal results, although with the proviso that the patient should be monitored. Appellant cancelled a June appointment with appellee on the basis of these findings. During the parties’ telephone conversation of June 17 regarding the test results, appellee informed appellant that the lump had decreased in size, and was in turn instructed that she should plan to be examined again in three months, or sooner should soreness or an increase in the size of the lump occur. In December of 1983, with no intervening contact between the parties, appellee revisited appellant, this time presenting a tumor six centimeters in diameter, with associated enlargement of the lymph nodes. Following an unsuccessful attempt at needle aspiration, appellee was referred to a specialist whose biopsy of the lump proved it to be malignant. Almost immediately, appellee underwent a modified radical mastectomy; however, as the lymphatic swellings indicated, metastasis had already occurred. Despite continuous treatment, appellee died in August 1987, three months after the conclusion of trial.

Suit was instituted in October, 1985, alleging negligence in appellant’s examination, diagnosis, and treatment of appellee’s condition, and claiming damages for loss of both spousal and filial consortium. Trial commenced on May 11, 1987. As her first witness, appellee called appellant as of cross examination; the second witness was her expert, Dr. Donna Glover, and plaintiff’s evidence concluded with the testimony of appellee herself. Appellant then moved successfully for the imposition of compulsory non-suit. The

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(5) New trials. An order in a civil action or proceeding awarding a new trial ...

This Rule merely codifies a long standing common law practice in Pennsylvania. See 1 Pennsylvania Appellate Practice § 311:28 (1986). trial court granted appellee’s post trial motions for removal of the non-suit and for a new trial, and this appeal followed.

Appellant has presented us with two issues which mirror the arguments underlying the Motion for Non-Suit.

It is first contended that non-suit is compelled by the rule enunciated in Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104 (1927). There our supreme court held that because the two medical experts produced by the plaintiff attributed his condition to irreconcilable causes, the testimony of both should be stricken. The argument herein is predicated on the assumptions that appellant was called as a witness for appellee, who is therefore bound by his testimony, and that the evidence elicited represented an absolute conflict with the conclusions of Dr. Glover, “so as to neutralize each other's evidence." Id., 289 Pa. at 61, 137 A. 108.

Appellee’s counter argument is that since appellant was called as of cross-examination, he was not presented as an expert on her behalf, and she is not bound by his testimony. It is contended that because of the tactical posture in which appellant’s evidence was given, the contradictions between his testimony and that of appellee’s expert are matters to be resolved by the jury. To support his contention, appellee directs our attention to 42 Pa.C.S.A. § 5935, which permits an adversary to be called as of cross-examination during a party’s case in chief.

Appellant’s view is that Mudano and § 5935 are separate and distinct, the latter confined to regulating factual testimony, and the former controlling as to opinion testimony, and as “defining the consequences of presenting conflicting expert testimony on crucial issues within the plaintiffs’ case.” (Appellant’s Brief at 12.) By means of this contention, appellant posits a “spheres of influence” rule, requiring a determination as to which of appellant’s two incarnations takes precedence, that of expert, or that of adversary. We find that such a distinction is unnecessary.

First, we find the Mudano principle to have been modified by our supreme court in Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). There the Court noted that since the Mudano decision, “[the Supreme] Court has allowed juries to consider and resolve conflicts among expert witnesses.” Id., 490 Pa. at 596, 417 A.2d 200. Although Brannan differs factually from the case at bar in that the expert testimony there suffered from minor internal inconsistencies rather than absolute divergences as to liability, we find that Brannan is consistent with § 5935. As appellee points out, § 5935 nowhere makes mutually exclusive expert and adversarial testimony. However, § 5935 does specify adherence to the Rules of Evidence concerning cross examination.

In Pennsylvania, a party calling a witness as of cross is bound by the testimony thus evoked unless it is contradicted by other evidence, not limited to direct testimony, or is inherently incredible. Piwoz v. Iannacone, 406 Pa. 588, 178 A.2d 707 (1962). The application of this principle is apparent from the decisions in Stack v. Wapner, 244 Pa.Super. 278, 368 A.2d 292 (1976), and Michultka v. Grapin, 235 Pa.Super. 51, 340 A.2d 576 (1975), which present striking similarities to the appellant’s case. In both instances physician/defendants were called by patient/plaintiffs as on cross-examination. Because their testimony was contradicted by plaintiffs’ experts, it was found not to have been binding on the calling party. Judge Spaeth, speaking for an en banc panel of this court in Stack, observed with approval the waning vitality of the notion that a party is irrefutably bound by the statements of one’s own witnesses, and based his conclusions on the predecessor to § 5935, 28 P.S. § 381, and Piwoz, supra. The court in Michultka, supra, echoes this theme. We find these precedents both authoritative and dispositive. Compare, Scacchi v. Montgomery, 365 Pa. 377, 75 A.2d 535 (1950); Carl v. Matzko, 213 Pa.Super. 446, 249 A.2d 808 (1968). (Plaintiffs in both cases bound by evidence of defendant physicians in malpractice action where testimony neither rebutted nor incredible). For the foregoing reasons, we find the trial court to have correctly determined that Mudano was not controlling.

Appellant’s second argument is that compulsory non-suit should not have been removed because no prima facie case of malpractice was established by appellee. To gauge the merits of such an allegation, the correct standards of review must be utilized:

It has long been settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established. The plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff ... We must therefore review the evidence to determine whether the order entering judgement of compulsory nonsuit was proper.

Coatesville Contractors and Engineers, Inc. v. Borough of Ridley Park, 509 Pa. 553, 559-60, 506 A.2d 862, 865 (1986) (citations omitted); Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988).

The requirements of demonstrating a case of professional medical negligence was recently reiterated by this court in Corbett v. Weisband, supra:

(the plaintiff) must prove by competent evidence that the conduct of Dr. [Montgomery] fell “below the standards of reasonable medical practice, and that her injuries [were] caused by [his] failure to provide such medical care.” Reichman v. Wallach, 306 Pa.Super. 177, 183, 452 A.2d 501, 504 (1982) (Brackets in original).

Id., 380 Pa.Superior Ct. at 302, 551 A.2d 1064.

The pivotal questions herein are (1) whether the tumor which appeared on appellee’s left breast in May was the same as the one presented to appellant in December; (2) whether appellant’s failure to perform certain diagnostic procedures at the initial visit exacerbated appellee’s condition, thus decreasing her chances for successful treatment.

As to both of these questions, we note, in agreement with the trial court, that appellee’s expert had been poorly prepared for trial. However, a review of Dr. Glover’s testimony reveals that she indeed opined with a reasonable degree of medical certainty that both of the questions posed could be answered in the affirmative. Given this circumstance, we find the trial court to have been correct in its decision to remove the non-suit.

Order affirmed.

      . Appellee has argued that such an order is interlocutory and unappealable. However, Pa.R.A.P. 311(a)(5) provides in pertinent part as follows:

      . At oral argument, appellant denied ever having advanced the theory that appellee is bound by the evidence of her adverse witness. However, such a contention is both implicit in and necessary to the Mudano rule, as well as appellant’s reliance thereon. Were this not the case, appellant could attach no importance to the contradictions he finds so critical.

      . § 5935. Examination of person adversely interested
      In any civil action or proceeding, whether or not it is brought or defended by a person representing the interests of a deceased or lunatic assignor of any thing or contract in action, a party to the record, or a person for whose immediate benefit such proceeding is prosecuted or defended, or any director or other officer of a person which is a party to the record, or for the immediate benefit of which such action or proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters whether or not these matters were touched upon in his cross-examination, and also, where one of the several plaintiffs or defendants, or the person for whose immediate benefit such proceeding is prosecuted or defended, or such director or officer, or such other person having an adverse interest, is cross-examined under this section, his coplaintiffs or codefendants, or fellow directors or officers, shall thereby become fully competent witnesses on their own behalf, or on behalf of the person of which they shall be directors or officers, as to all relevant matters, whether or not these matters were touched upon in such cross-examination.


author: DEL SOLE, Judge:

text:
    558 A.2d 113
    Michael Shan STEVENS, Appellant, v. KEMPER INSURANCE COMPANY; National Dealer Services Company, Miller-McViegh Ford, Inc.; and Sutton Insurance Associates, Appellee, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee. Leonard and Esther CARR, Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1989.
    Filed May 10, 1989.
    Reargument Denied June 15, 1989.

      John R. Ryan, Clearfield, for appellant (at 179).
    James Naddeo, Clearfield, for appellant (at 1023).
    Robert L. Martin, State College, for Kemper Ins., appellee (at 179) and for Lumbermens Mut., appellee (at 1023).
    Before: CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

These cases were consolidated before us on appeal from orders granting Appellee, Lumbermens Mutual Casualty Company’s, (Lumbermens) motions for summary judgment. The orders were issued based upon the trial court’s conclusion that Lumbermen did not fail to provide the required notice of cancellation of an insurance policy because a policy was never issued in this case. We affirm the trial court’s ruling, but on different grounds. We conclude that the notice provided in this case was sufficient to meet the statutory requirements.

Appellant, Stevens, completed and submitted to his agent, Sutton Insurance Associates, an application for automobile insurance coverage with Lumbermens. That same day, January 4, 1980, Stevens paid $175.00 toward his insurance premium and was issued a binder. On January 14, 1980, Stevens was orally advised by Sutton that Lumbermen declined to write the policy. Three days later Sutton mailed a letter to Stevens which stated in part: “Be advised that your application for automobile insurance with the Kemper Insurance Company (parent company of Lumbermens) has been declined due to your driving record.” Stevens premium payment was returned to him by check which he cashed on January 26, 1980. Almost two months later Stevens purchased an automobile which was subsequently involved in a motor vehicle accident with Appellants, Mr. and Mrs. Carr.

The automobile accident precipitated a series of legal actions. The Carrs filed suit against Stevens to recover damages for personal injuries suffered as a result of the accident. A verdict in favor of the Carrs was rendered in the amount of $155,000.00 plus delay damages and interest. A separate action was initiated by Stevens in September of 1982 against Kemper and other defendants. After the filing of two amended complaints, answers, depositions, interrogatories and requests for admissions, Kemper/Lumbermens sought summary judgment. The court granted this request. A third action was brought by the Carrs after Stevens assigned to them any and all rights he may have had against Kemper and Lumbermens. Lumbermens filed a motion for summary judgment based upon the trial court’s disposition of its similar motion in the action brought by Stevens. As with the Stevens action, the trial court granted the motion. The trial court orders granting these motions for summary judgment are the subject of this consolidated appeal.

The accident and Stevens’ subsequent suit also prompted review of Lumbermens actions by the Insurance Commissioner. The Insurance Department of the Commonwealth of Pennsylvania filed a Order to Show Cause against Lumbermens which alleged various violations of insurance law. The Commissioner was asked to rule upon the adequacy of Lumbermen’s cancellation notice. It ordered Lumbermens to cease and desist from cancelling automobile policies without adequate notification to the insured. It declined to rule that the insured’s policy remains in force until proper cancellation and it did not address the question of coverage regarding the instant accident.

Because the issue before the Commissioner was whether the Insurance Company was violating statutory provisions by failing to give adequate notice to its insureds, and not whether Stevens had coverage at the time of the accident, we reject Lumbermens initial claim this appeal is an attempt to collaterally attack the Commissioner’s ruling. Lumbermens asserts that Act 78, 40 P.S. § 1008.9 provides an exclusive administrative remedy where the insurer has “refused to write” a policy of automobile insurance. The act does permit an applicant for insurance coverage, who is refused a policy, to request the Insurance Commissioner to review the action of the insurer. 40 P.S. § 1008.9(b). The Act does not, however, provide a means by which one can seek to determine coverage. In this case Appellants have filed actions to recover under the terms of a policy. Although the insurer’s attempt at cancellation will necessarily be addressed in this case, the true question of coverage was a proper matter to be brought before the trial court and it is now appropriate for our review.

The trial court found that Appellees were entitled to summary judgment since there was no policy of insurance in effect at the time of the accident. It ruled that the binder which was issued was not an automobile insurance policy and therefore the formal standardized notice requirements were not necessary. Detailed requirements for cancellation or refusal to renew a policy are found in 40 P.S. § 1008.5. For those policies which have been in effect for less than sixty days there is a separate provision. Section 1008.6 begins by stating that “Nothing in this act shall apply [including the detailed notice provisions of § 1008.5]:” to three specific circumstances. The third situation describes circumstances where the policy has been in effect for less than sixty days and it reads:

To any policy of automobile insurance which has been in effect less than sixty days ... except that if an insurer cancels a policy of automobile insurance in the first sixty days, the insurer shall supply the insured with a written statement of the reason for cancellation.

40 P.S. § 1008.6(3).

This section has been considered both by our court and the Supreme Court in situations where the insurer sought to rescind an automobile insurance policy upon learning of a material misrepresentation contained in the application. In an Opinion Announcing the Judgment of the Court, Justice McDermott writes:

[T]he explicit language of the exception ... clearly indicates the legislative intent to govern the termination of policies even during the sixty day period. Although that language prescribes only minimal procedures to be followed, it nevertheless clearly prescribes what an insurer must do.

Metropolitan Property and Liability Insurance Company v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588, 594 (1987). A footnote to this comment provides:

... Under appellant’s interpretation an insurer may cancel a policy unilaterally, and then tell the customer. The customer then could very well find himself in a position of driving without insurance, a clear violation of the Financial Responsibility Law, and he would not even be aware of this fact. In addition, he would unknowingly put at risk himself and all other persons on the highway. This section, in order to be effective, must be construed as requiring prior notice before a cancellation can occur. It cannot be interpreted otherwise and meet standards of fairness and due process____

Id. at n. 10.

Justice McDermott’s rationale requiring an insurer to comply with the provision of Act 78, 40 P.S. §§ 1008.1-1008.11, was adopted by this court in Klopp v. Keystone Insurance Companies, 378 Pa.Super. 605, 549 A.2d 221 (1988). Thus, we find that cancellation of a policy which occurs within sixty days of issuance must be preceded by written notification of the reason for cancellation. Similarly an applicant who is refused a policy of insurance by an insurer is also entitled to notification. Section 1008.8(b) states in part:

Any applicant for a policy who is refused such policy by an insurer shall be given a written notice of refusal to write by the insurer. Such notice shall state the specific reason or reasons of the insurer for refusal to write a policy for the applicant.

Whether Lumbermens issuance of a binder can be deemed issuance of a policy which it sought to cancel within the first sixty days, or whether Lumbermens actions amounted to a refusal to issue a policy of insurance, in either instance, written notification of the reasons for Lumbermens’ actions was required. In this case Stevens did receive written notification from Lumbermens. This notification was not required to follow the detailed standards set forth in § 1008.5. All that was required was written notification of the reasons for the insurer’s actions which would give Stevens notice of his situation so that he may pursue avenues to remedy it, i.e. seek insurance coverage elsewhere and/or contest the insurers action with the Insurance Commissioner (See 40 P.S. § 1008.8).

We find the notice received by Stevens was sufficient to inform him that he would be without coverage. Not only did he receive a phone call apprising him of the situation but he also was sent a letter from his agent which stated that his application was being declined due to his “driving record”. Further Stevens was sent a check from Lumbermens marked “policy cancellation” which he cashed. Approximately two months later Stevens and the Carrs were involved in the accident which is the subject of their claims. Under these circumstances, we conclude that Stevens was not covered under a policy of insurance with Lumbermens at the time of the accident. Accordingly, we affirm the trial court’s orders granting summary judgment in Appellee’s favor.

Orders affirmed.