author: • ROWLEY, Judge:

text:
    461 A.2d 839
    Eva REIFINGER v. HOLIDAY INNS, INC., Appellant v. WILSON & SAVAGE DEVELOPMENT COMPANY.
    Superior Court of Pennsylvania.
    Argued March 17, 1983.
    Filed June 10, 1983.

      Gary Keith Feldbaum, Philadelphia, for appellant.
    Rosalind T. Kaplan, Philadelphia, for Reifinger, appellee.
    Frank C. Bender, Philadelphia, for Wilson & Savage Development Co., appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   • ROWLEY, Judge:

This is an appeal from an order of the trial court granting summary judgment in favor of Wilson & Savage Development Company (hereafter “Wilson & Savage”), additional defendant-appellee, and against Holiday Inns, Inc. (hereafter “Holiday Inns”), the original defendant-appellant. We reverse.

Plaintiff Eva Reifinger instituted this action in Pennsylvania against Holiday Inns for damages arising from personal injuries allegedly suffered in March, 1978. Plaintiff avers that her injuries occurred as a result of Holiday Inns’ negligence that caused her to fall during her stay at the Holiday Inn in St. George, Bermuda. Plaintiff’s complaint was filed on September 11, 1978. On April 20, 1980, appellant joined Wilson & Savage as an additional defendant, alleging that Wilson & Savage’s “agents, servants, workmen and/or employees” had negligently or recklessly caused Mrs. Reifinger’s injuries. Wilson & Savage is alleged to be “located” in Tennessee. On May 16, 1980, Wilson & Savage filed preliminary objections alleging, inter alia, that “[t]he Courts of Pennsylvania have no jurisdiction, either personal or subject matter, over the Additional Defendant.” The Honorable Edward Rosenwald, to whom the case had been assigned for trial, overruled appellee’s preliminary objections on October 22, 1980.

The parties proceeded through discovery and, on three separate occasions, the case was scheduled for trial. In all three instances, however, trial was continued just prior to its scheduled commencement. In January, 1982, Judge Rosenwald was reassigned to the Criminal Section of the Trial Division of the Philadelphia County Court of Common Pleas. This case was then reassigned for trial to the Honorable Paul M. Chalfin. In February, 1982, trial was scheduled to commence on June 28, 1982.

On May 26, 1982, barely one month before the scheduled trial date, Appellee Wilson & Savage filed a motion for summary judgment. The sole ground raised by appellee was that the Pennsylvania courts lacked in personam jurisdiction over it. In an accompanying memorandum of law, Wilson & Savage stated that “the Motion for Summary Judgment is in essence a Motion for Reconsideration of the issue of the assertion of personal jurisdiction over the Additional Defendant ...” decided adversely to Wilson & Savage nineteen months earlier by Judge Rosenwald. Holiday Inns requested and was granted an extension of ten days in which to file an answer to the motion; the answer was filed on June 25, 1982, three days before trial was to begin. Judge Chalfin heard oral argument on the motion immediately prior to the commencement of jury selection on June 28. During the course of voir dire, Judge Chalfin announced that he intended to grant Wilson & Savage’s motion for summary judgment. Trial proceeded through counsels’ opening statements to the jury but ended in a mistrial upon Plaintiff’s request for the withdrawal of a juror. Judge Chalfin’s order granting appellee’s motion for summary judgment was dated July 12, 1982, and was docketed on July 16, 1982. Thereafter, appellant perfected the instant appeal.

The parties present four issues for resolution. First, is the order granting summary judgment in favor of Wilson & Savage a final order from which Holiday Inns may take an appeal as of right? Second, did Judge Chalfin properly “reconsider and overrule” I the earlier decision and order of Judge Rosenwald dismissing Wilson & Savage’s preliminary objections to in personam jurisdiction? Third, was summary judgment rendered in accordance with the standards set forth in Pa.R.C.P. No. 1035? Finally, may the courts of Pennsylvania exercise personal jurisdiction over Appellee Wilson & Savage? Because of our disposition of the first two questions, we deem it unnecessary and inappropriate to discuss the other questions raised and, therefore, we express no opinion on them at this time.

I

Unless an order falls within a specific exception created by statute, see 42 Pa.C.S.A. §§ 702 and 5105(c), or by general rule, see Pa.R.A.P. 311, 312, and 1301 et seq., this court may entertain an appeal only if the order appealed from is final. 42 Pa.C.S.A. § 742. Appellant does not here invoke any exception to the general rule but rather asserts that the order of July 12, 1982, is final and immediately appealable. Appellee argues that summary judgment rendered in favor of an additional defendant is not a final order. However, this issue has been decided by this court on at least two previous occasions; in each instance, such an order was held to be final and immediately appealable. Lane v. Schacht, 260 Pa.Super. 68, 74, 393 A.2d 1015, 1018 (1978); Husak v. Berkel, 234 Pa.Super. 452, 455 n. 1, 341 A.2d 174, 175 n. 1 (1975). In each case, it was noted that the order in question effectively terminated the litigation as to the additional defendant. Appellee presents no reasons for disregarding Lane and Husak and none are readily apparent. We therefore conclude, as did the court in Lane, supra, and Husak, supra, that the order appealed from in this case is final and that the case is properly before us for review.

II

We hold that it was error for Judge Chalfin to consider Appellee Wilson & Savage’s motion for summary judgment. The sole ground relied upon by appellee in the motion was identical to one of five which appellee had earlier presented in its preliminary objections. These objections had been overruled by Judge Rosenwald on October 22, 1980.

Absent some new evidence, it is improper for a trial judge to overrule an interlocutory order of another judge of the same court in the same case. There must be some degree of finality to the determinations of all pre-trial applications so that judicial economy and efficiency can be maintained.
Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978).

Accord: Commonwealth v. DeMichel, 214 Pa.Super. 392, 257 A.2d 608 (1969); See also: Commonwealth v. Washington, 428 Pa. 131, 133 n. 2, 236 A.2d 772, 773 n. 2 (1968); Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520, 522 (1979); Commonwealth ex rel. Schulberg v. Hirsch, 236 Pa.Super. 179, 181-182, 344 A.2d 530, 531 (1975); Sherman v. Yoder, 59 Pa.Cmwlth. 430, 433, 430 A.2d 347, 349 (1981).

The record before Judge Chalfin was in no respect materially different with regard to the issue of personal jurisdiction than that before Judge Rosenwald at the time the latter ruled on appellee’s preliminary objections. Indeed, in support of its motion for summary judgment presented to Judge Chalfin, Wilson & Savage attached as an exhibit to the motion the deposition of Doyle Savage, one of the two partners having an interest in Wilson & Savage Development Company. This deposition was the sole evidentiary means by which appellee attempted to prove that the courts of this Commonwealth could not exercise personal jurisdiction over it. Savage had been deposed on August 1, 1980, and the transcribed notes of testimony were filed of record on October 20, 1980. This deposition, therefore, was before Judge Rosenwald .at the time he issued his order overruling appellee’s preliminary objections. Furthermore, Judge Rosenwald had specifically ordered the deposition to be taken for the express purpose of assisting him in ruling on appellee’s preliminary objections with respect to the issue of personal jurisdiction. The deposition was limited to that issue alone. The record does not disclose that Judge Chalfin had any evidence before him that was relevant to the issue of personal jurisdiction that was not before Judge Rosenwald when he overruled appellee’s preliminary objection to personal jurisdiction.

Moreover, Judge Rosenwald remained available at the time the motion for summary judgment was presented to Judge Chalfin. He had merely been reassigned to hear matters in criminal cases. It was possible, therefore, to assign the motion for summary judgment to him for disposition. Also, for more than a year after he ruled on the preliminary objections, Judge Rosenwald continued to preside in the Civil Section of the Trial Division with this case on his calendar. Judge Rosenwald had scheduled it for trial on three occasions. Appellee thus had more than sufficient time to prepare a motion for reconsideration and submit it to the same judge who had decided the issue in the first instance. Thus, no valid reason appears in the record of this case to make an exception to the general rule that one judge may not overrule an interlocutory order of another judge of the same court in the same case.

For all of the foregoing reasons, the order of July 12, 1982, is reversed and the case is remanded for trial without prejudice to the right of the appellee to renew its jurisdictional objection in post-trial motions.

Jurisdiction is not retained.

      . Plaintiff is also before this Court as an appellee. However, she has joined “in and adopts by reference the brief” and argument of appel-lee, Wilson & Savage.

      . Counsel for Wilson & Savage conceded at oral argument that Judge Chalfin had “overruled” Judge Rosenwald.

      . Appellee’s argument that the order is not final is based upon a reading of Matthews v. Johns-Mansville Corp., 307 Pa.Super. 300, 453 A.2d 362 (1982). However, that case involved an order granting a severance, not the grant of summary judgment. Appellee’s reliance upon Matthews is therefore misplaced.

      . The other partner in Appellee Wilson & Savage, one Kemmons Wilson, was also a co-founder and, at least for a time, Chairman of the Board of the appellant in this case, Holiday Inns, Inc. See Zimmerman v. Holiday Inns of America, Inc., 438 Pa. 528, 266 A.2d 87, 41 A.L.R.3d 421 (1970); D. Savage Deposition, 2/13/81, pp. 55, 91, 98, 111, and 114-120 (R.R. 162a, 198a, 205a, 218a, and 221a-227a).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    461 A.2d 843
    COMMONWEALTH of Pennsylvania v. Joseph John CECCHINI, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 17, 1981.
    Filed June 10, 1983.

      Bert M. Moldovan, McKeesport, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered by the Honorable James F. Clarke in the Court of Common Pleas of Allegheny County. The appellant, Joseph John Cecchini, was tried without a jury and convicted of Fraudulent Dealing in Vehicles with Removed or Falsified Numbers and with Dealing in Vehicles with Removed or Falsified Numbers, both in violation of the Commonwealth Motor Vehicle Code. Sentence was suspended and the appellant was released on probation for three years, ordered to pay costs of prosecution and to make restitution in the sum of Seventy-two hundred sixty ($7,260.00) dollars to Patrick DiPerna. Post-verdict motions for new trial and arrest of judgment were denied.

The charges arose out of a complaint from Patrick DiPer-na, a self-employed resident of the City of McKeesport. Mr. DiPerna claimed that in April of 1978 he purchased a 1975 Lincoln Continental 2-door coupe automobile from the appellant. At the time of the purchase, Mr. DiPerna was accompanied by his brother. Mr. DiPerna testified that the agreed sale price was $5,500.00, which Mr. DiPerna was to pay in $200.00 weekly installments after paying $400.00 cash down. Mr. DiPerna said that the appellant had assured him that all “papers” would be taken care of through a friend of the appellant’s at the “3 A’s.” The appellant represented to Mr. DiPerna that the Lincoln automobile was owned by the appellant’s wife. The buyer made payments by check made out to “cash” and the appellant called at the buyer’s house regularly every Friday to pick up the payment checks. All of the checks bore the appellant’s endorsement with the exception of a few which were endorsed by one Chester Cottone and one which the appellant endorsed jointly with Chester Cottone. The total payment made by check was $6,860.00, which when added to the $400.00 cash payment, made a total of $7,260.00. While the original agreed price was for $5,500.00, the appellant said to Mr. DiPerna that the difference in the amounts was for “financing the deal.”

Mr. DiPerna also testified that the Pennsylvania State Police came to his house with a search warrant, looking for a stolen automobile and seized the Lincoln automobile pursuant to the warrant and had it towed away. Before this happened, Mr. DiPerna said that the appellant had contacted him and instructed him to get rid of the car because it was “hot,” and to make a claim for loss under his insurance policy. Mr. DiPerna did not carry out this request.

Mr. DiPerna also testified that several hours after the State Police seized the Lincoln automobile, the appellant telephoned him at home and asked him to meet with him at a garage. The parties met, and during the course of this meeting Mr. DiPerna said that the appellant said to him, “Damm it, I told you to get rid of the car.” DiPerna said that he had need of transportation so the appellant made available for him the use of a 1965 Cadillac automobile, but DiPerna said that it was not in fit condition to be on the road and it had to be returned to the appellant. DiPerna also said that he never received a title certificate for the car. The title certificate was exhibited showing an encumbrance of $3,500.00 in favor of the appellant and DiPerna’s explanation for that amount as distinguished from the purchase price which he quoted was that the appellant had indicated to him that he had fixed the price at the lower figure in order to “beat the taxes.”

DiPerna’s brother, Carl, was called to testify and he said he was present with his brother when appellant was paid $400.00 cash down for the Lincoln automobile and heard the appellant say that he would take care of all of the paper work.

The Commonwealth also produced Edward Alvarez, a self-employed mechanic who operates a shop at his home and who said that he had been in business for fifteen years. This witness had two sheets of inspection station reports for the station he operated under No. 2069. From these records the witness indicated that a 1975 Lincoln coupe bearing Manufacturer’s No. FOY81A83524F had been inspected by him May 21, 1977, and his records listed the vehicle owner as “Joseph Cecchini”. The witness then went on to say that on November 7, 1977, he inspected a 1975 Lincoln owned by Joseph Cecchini bearing Manufacturer’s No. F5981A835298. On cross-examination this witness said that he did not inspect vehicles without personally seeing the owner’s card or title.

The Commonwealth then produced Pennsylvania State Police Trooper Louis Redenbaugh, of the Auto Theft Squad, who said that on March 22, 1979 he seized a Lincoln automobile, confiscating it from Mr. DiPerna. The witness said he got a certified copy of the certificate of title for this vehicle from Harrisburg and that he observed the public number and the confidential number on this particular vehicle. He said that the public number was 5Y81A835248 and the confidential number was 5Y81A882270, both of these numbers obviously being different when they should have been the same. The application for this vehicle to be titled in Pennsylvania had been filed by “E. Marrone & Sons” listed as a junk dealer in New Castle, Pennsylvania, and the number listed there was for a 1975 Lincoln 2-door Town Coupe bearing Manufacturer’s Number 5Y81A835248. The witness also produced as an exhibit a certificate of title for a 1975 Lincoln Continental owned by “Bob Delancey, Inc.”, a dealer, bearing Manufacturer’s Number 5Y81A882270, which was the same confidential number found to be on the vehicle seized by the police from Mr. DiPerna. The witness also said that the certificate of title, obtained from the Bureau of Motor Vehicles on the DiPerna car indicated that “E. Marrone & Sons” of New Castle, was a titled owner and that title was transferred from them on September 16, 1976 to one “Frank Yesbech” of McKeesport, Pennsylvania, a person which the trooper said he had been unable to locate and could not find any record of such a person’s existence. Subsequently, the title on this vehicle was transferred April 18, 1978 from Frank Yesbech to Margaret DiPerna, the wife of the victim in this case, in whose name title to the vehicle had been taken in the transaction involving this appellant. This title was encumbered on the records to the appellant, Joseph Cecchi-ni, in the amount of $3,500.00. No certificate of title has ever been issued to the person named “Frank Yesbech”.

The appellant took the stand and denied he had ever sold this vehicle to Mr. DiPerna, claiming that the appellant had instead signed a judgment note in favor of the appellant, January 18, 1978, on the basis of which he had loaned DiPerna money to purchase an automobile and that the encumbrance was put on the title to protect his interests. The appellant further said that he had no knowledge of alteration of any numbers on any vehicles. He went on to say that he is in the business of being a beer distributor and that he sometimes lends money to people and that he had lent money to Mr. DiPerna on a prior occasion.

The appellant contends that the lower court erred in refusing to grant his motion in arrest of judgment claiming that the evidence produced by the Commonwealth was insufficient to sustain the charges. Moreover, he argues that it was error to admit into evidence Commonwealth’s exhibits five (5) and six (6) pertaining to the title histories of the public number (5Y81A835248) and confidential number (5Y81A882270).

In reviewing the denial of a motion in arrest of judgment, this court examines the evidence in a light most favorable to the Commonwealth, extending to the Commonwealth the benefit of all reasonable inferences to be drawn therefrom. Commonwealth v. Rothman, 226 Pa.Super. 319, 310 A.2d 353 (1973). The offenses' with which the appellant was charged and convicted are set forth as follows:

(a) A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission, knowing that an identification number has been removed or falsified, is guilty of a misdemeanor of the third degree. (Emphasis supplied)
(b) A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission, with knowledge that an identification number has been removed or falsified with intent to conceal or misrepresent the identity thereof, is guilty of a felony of the third degree. (Emphasis supplied)

Having examined, in detail, the record of this case, we are of the opinion that the evidence presented by the Commonwealth does not justify a conviction on the indictments before us.

Our decision in Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A.2d 737 (1940), specified that it is necessary for the Commonwealth to prove that the appellant had knowledge of the removal or falsification of a vehicle’s identification numbers. In Unkrich, the appellant was accused of possessing an automobile upon which a certain manufacturer’s engine number had been omitted, obliterated and defaced. The Commonwealth presented evidence indicating that the identification numbers were defaced, that the automobile was stolen and that the appellant had possessed it. This court held that while some of the circumstances attending the case were of a suspicious nature and were sufficient to support a charge of receiving stolen goods, such evidence was not enough to show that the appellant possessed the requisite guilty knowledge. “Otherwise any person who buys a car, ... may be arrested, tried and convicted because perchance a secret number hidden somewhere in the car, where the average person would not think of looking, has been obliterated without the owner’s knowledge.” Id., 142 Pa.Superior at 595, 16 A.2d at 740.

We recognize that direct evidence of an accused’s state of mind is often not available where intent or guilty knowledge must be shown in order to sustain a conviction. Commonwealth v. Stevenson, 242 Pa.Super. 31, 363 A.2d 1144 (1976). Moreover, it is well established that criminal intent or guilty knowledge may be inferred where the facts are such as to show that element of the crime. Our review of the record discloses that the identification numbers on the vehicle were falsified, that the appellant possessed and sold the vehicle, and that he urged the buyer, DiPerna, to dispose of it, thereby revealing his knowledge that the automobile was stolen. We do not question the relevancy of these facts to the determination of the appellant’s guilt or innocence, nor do we dispute the suspect nature of the appellant’s conduct in this case. However, in our yiew, such evidence does not indicate beyond reasonable doubt that appellant had knowledge of the removal or falsification of the numbers in question. Absent this crucial element of the crime, his conviction cannot be sustained. While we may, of course, draw fair inferences from circumstantial evidence, even that evidence is lacking here. Knowledge that a vehicle is stolen (and there is evidence that appellant possessed such knowledge) is not the same thing as knowledge that serial numbers have been changed.

We are bound by the statute defining the elements of the crime with which appellant was charged and are therefore compelled to the decision we reach in this case.

Accordingly, the Judgment of the lower court is reversed and the appellant is discharged.

      . 75 Pa.C.S.A. § 7103, Act of 1976, June 17, P.L., 162, No. 18, § 1, effective July 1, 1977.

      . 75 Pa.C.S.A. § 7103(a).

      . 75 Pa.C.S.A. § 7103(b).

      . Appellant Unkrich was charged under sections 301 and 306 of the Motor Vehicle Code of May 1, 1929, P.L. 905 Art. 111, amended by the Act of June 29, 1937, P.L. 2329, § 1, 75 P.S. §§61, 66. This was repealed and replaced by the present law. See n. 1 supra.

      . The evidence produced by the Commonwealth is more probative of the crime of Dealing in Titles for Stolen Vehicles, 75 Pa.C.S.A. § 7111, with which the appellant was not charged.

      . Having determined the evidence insufficient to convict the appellant, it is unnecessary to consider the issue regarding the relevancy of Commonwealth’s exhibits 5 and 6.


author: HESTER, Judge:

text:
    461 A.2d 846
    Mildred R. KEEN By Frank VAN KLEEF, v. Edward B. KEEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed June 17, 1983.
    Petition for Allowance of Appeal Denied Nov. 9, 1983.

      Larry B. Maier, Ephrata, for appellant.
    John L. Sampson, Lancaster, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Mildred R. Keen (hereinafter “decedent”) and appellant, Edward B. Keen, were married on June 19, 1937 in Bel Air, Maryland. On October 30, 1948, they purchased real estate, as tenants by entireties, situate in Lancaster County, Pennsylvania, and comprising some twenty-four (24) acres. From 1949 through 1961, decedent and appellant conveyed portions of the above real estate in five (5) separate transactions so that, at the commencement of this action below, approximately twenty-three (23) acres remained.

Decedent and appellant divorced on October 7, 1977. One month thereafter, decedent filed a Complaint in Equity in the Court of Common Pleas of Lancaster County asking for partition of the aforementioned real estate and the appointment of a trustee for sale of the property and equitable distribution of the net proceeds. On January 17, 1978, before appellant filed any responsive pleading to the Complaint, decedent died. Shortly thereafter, appellee, as administrator of decedent’s estate, was substituted as plaintiff in the lower court proceeding.

On August 10, 1978, appellant filed preliminary objections, including a demurrer, seeking dismissal of the Complaint on grounds that full title to the real estate passed exclusively to him on the decedent’s date of death as the surviving tenant of a tenancy by entireties. The lower court denied the demurrer on September 27, 1978. The lower court held that the tenancy by entireties was actually severed upon the mere filing of the partition action; consequently, full and exclusive title to the twenty-three (23) acres did not pass to appellant as the surviving spouse. Instead, the property was partitioned into two equal shares.

Following protracted proceedings involving the filing of amended complaints, preliminary objections, briefs, answers and amended counterclaims, the lower court entered a stipulation and order, dated May 28, 1981, permitting either party to appeal from the order and affirming the earlier partitioning of the real estate into a one-half fee simple interest for decedent’s estate and the same one-half interest for appellant.

Appellant’s exceptions to the May 28th order were denied by an Order of Court, dated November 6, 1981, which reaffirmed the lower court’s original order of partition. Appellant appeals from this latest order of November 6, 1981.

We must decide whether the mere filing of a partition action after divorce under an Act of 1927 operates as the termination of a tenancy by entireties and a conversion of the entireties estate into a tenancy in common. As is quite often the case, we address an issue not yet settled by our appellate courts; therefore, we consider the history of estates in land, statutory construction, related decisional law, and the opinion of our trial courts.

Until 1925, Pennsylvania adhered to the common law position. A tenancy by entireties was a single entity, composed of two married persons holding title to the entire estate. 1 Grover Cleveland Ladner, Ladner on Conveyancing in Pennsylvania, § 1.08 (4th ed. 1979). As a result, this entirety of title could not be severed by partition, Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960), conveyance, Gasner v. Pierce, 286 Pa. 529, 134 A. 494 (1926), or divorce, O’Malley v. O’Malley, 272 Pa. 528, 116 A. 500 (1922). It was not until the enactment of successive statutes in 1925 and 1927, Act of May 13, 1925, P.L. 649; Act of May 10, 1927, P.L. 884, 68 P.S. § 501, when either tenant by entireties could compel partition of the estate after divorce.

With the exception of a minor change in statutory language, having no significance to the instant matter, the Act of 1927 re-enacted the pertinent provisions of the Act of 1925. Section 501 of the Act of 1927 provided:

“That whenever any husband and wife hereafter holding property as tenants by entireties have been divorced either of such tenants by entireties may bring suit in the court of common pleas sitting in equity of the county where the property is situate against the other to have the property sold and the proceeds divided between them.” Id.

Subsequently, in 1949, the Act of 1927 was repealed by the Act of May 17, 1949, P.L. 1394, 68 P.S. § 501. This latter act expressly provided for the automatic conversion upon divorce of a tenancy by entireties to a tenancy in common of equal one-half shares in value. See Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973); Huns-berger v. Bender, 407 Pa. 185, 180 A.2d 4 (1962). This Act of 1949 was further amended by the Act of 1978, P.L. 202, No. 53, 68 P.S. § 501, but the automatic severance of the estate upon divorce was unaffected.

Insofar as the property at issue was acquired prior to 1949, the parties stipulate that the Act of 1949 and amendments thereto are not applicable; therefore, there was no automatic conversion of the estate upon divorce. Barlet v. Barlet, 88 Pa.D. & C. 550 (1954). The property here was purchased in 1948; consequently, the Act of 1927 governs. See Johns v. Johns, 52 Pa.D. & C.2d 99 (1971); McAuly’s Estate, 49 Pa.D. & C.2d 407 (1970).

The lower court interpreted the Act of 1927 in accordance with the opinion issued in Harrier v. Harrier, 59 Pa.D. & C. 682 (1947). The parties in Harrier acquired property in 1926 as tenants by entireties. They were divorced in 1939 and plaintiff/ex-wife filed a partition action in 1946 for the sale and division of net proceeds of the house. Plaintiff died within one month of filing the complaint and defendant argued that the proceeding was barred since he acquired exclusive title to the real estate as the surviving tenant. The Harrier court noted the statutory mandate that either tenant by entireties must “bring suit” to commence partition proceedings. Plaintiffs commencement of the partition suit was an act equated by the court to a surviving spouse’s formal election to refuse the provisions of her deceased husband’s will; the election alone precludes distribution of assets according to the will, despite the need to finalize probate proceedings. Accordingly, the Harrier court found plaintiff to have fully complied with the Act’s requirements; hence, the action survived and defendant’s rights to survivorship were defeated.

Appellant would have us apply the rationale of Lazare v. Lazare, 365 Pa. 591, 76 A.2d 190 (1950) and Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959), to overrule Harrier. In Lazare, decedent’s ex-wife filed an action in ejectment to gain possession of real estate occupied by decedent’s second and surviving spouse. The residence was purchased by plaintiff and decedent as tenants by entireties in 1940. Thereafter, the parties divorced, the residence was not partitioned, and decedent remarried and maintained the residence as his home with his second wife until his death. Similarly, the Act of 1927 applied. The court concluded that the legislature, in promulgating the Act,

“intended to modify the law only to the extent necessary to enable divorced parties, holding property by the entire-ties, to petition a court for a sale of the property and to give to each party an equitable share in the proceeds of such sale.” Id. 365 Pa. at 595, 76 A.2d at 192.

Further evidence of the limited change of common law was noted, according to Lazare, in Section 3 of the Act of 1927 describing the interest subsequent to divorce as “one-half of the value of the property, ...” Lazare said “value” connotes a monetary interest rather than a proprietary one; therefore, it was not until the property was sold that partition occurred and a separate one-half interest vested in each tenant. Prior to sale, both tenants remained tenants by entireties, regardless of divorce and commencement of a partition action.

A similar interpretation was taken in Sheridan v. Lucey, supra. The Sheridan plaintiff was a joint tenant with two others. She filed a complaint in partition, to which answers were filed. Before completing her formal reply, plaintiff died. One of the two remaining defendant/joint tenants died also while the action was pending. In finding the joint tenancy unaffected by the filing of the complaint, the Sheridan court opined:

"... we believe that the mere pendency of an action in partition, without more, is insufficient to work a severance of the joint tenancy, whereupon an abatement occurs upon the death of one of the joint tenants. This for the reason that, although a voluntary act on the part of one of the joint tenants is adequate to work a severance, that act must be of sufficient manifestation that the actor is unable to retreat from his position of creating a severance of the joint tenancy. We believe that the pendency of a partition proceeding, before the issues have been formulated, is such a premature act that the complainant has an election to continue the proceedings to judgment, thus affecting a severance of the joint estate or discontinuing the action and leaving the joint tenancy in status quo. It therefore becomes apparent that the death of the complainant does not work an election but leaves the parties where they were at the time of his death, i.e., vested with a joint tenancy, whereby the remaining or surviving tenant, by operation of law, obtains the deceased tenant’s interest.” Id. 395 Pa. at 309; 149 A.2d at 444.

The Lazare court unnecessarily extended its interpretation of the Act of 1927 in resolving the issue. It was necessary for that court to simply determine the effect of divorce on the character of a tenancy by entireties; an action for partition was never filed there and no attempt to sell and liquidate the house was made. Lazare was not, then, reviewing the effects on a tenancy by entireties of both a partition action and the death of a co-owner subsequent to the filing of the action; we agree, with the lower court and deem Lazare inapposite. We also distinguish Sheridan. The Sheridan court was strictly concerned with the effect of a pending partition action on joint tenancies; therefore, it did not review the statutory language of the Act of 1927.

We find it more prudent to affirm on the bases of Harrier, statutory construction and equitable principles. The Statutory Construction Act of 1972 directs that “(w)ords and phrases shall be construed according to rules of grammar and according to their common and approved usage____” Section 3 of the Act of 1927 provides in part as follows:

“In any case where a husband and wife shall hereafter acquire property as tenants by entireties, and shall be divorced, the interest of each of the respective tenants by entireties, subsequent to said divorce, shall be conclusively deemed to be one-half of the value of the property, and, to accomplish the provisions of this act, the common-law rule relating to entireties is hereby modified.” (emphasis added).

We will not force an interpretation of the words and phrases in section 3 contrary to “common and approved usage”. In finding divorce capable of rendering each spouse’s interest “one-half of the value of the property”, our legislature in 1927 effectively negated the “undivided-interest-in-the-whole” characteristic common to both joint tenancies and tenancies by entireties. See United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763 (1939). However, this statutory change of common law obviously did not extend to an automatic termination upon divorce of the tenancy by entireties. The Act of 1949 provided for that event. Further, Harrier quite clearly provides for the additional step of filing a partition action under the Act of 1927 before termination of the tenancy by entireties is attained. At most, divorce under the Act of 1927 merely changes the monetary interest, it does not change the type of concurrent ownership. It is the better position to view the Act of 1927 as a hybrid of common law and the Act of 1949; it neither unduly prolongs the tenancy by entireties status after divorce nor automatically terminates it upon divorce.

This interpretation is both logical, as heretofore discussed, and equitable. Decedent filed the partition action one month following the court’s issuance of a divorce decree. Even with the filing of a more prompt complaint by decedent and responsive pleading by appellant, the partition proceeding would not have concluded prior to decedent’s death. Therefore, decedent acted responsibly and did as much as possible toward reaching partition and sale before her death. Unfortunately, were our decision otherwise, less anxious defendants, as appellant appeared to be here, could delay with the hope of precluding partition and maintaining a survivorship status. We will not permit such an inequitable result.

Order affirmed.

POPOVICH, J., concurs in the result.


text:
    461 A.2d 850
    Marian Rita ORR v. Harold E. ORR, Appellant.
    Superior Court of Pennsylvania.
    Argued March 23, 1983.
    Filed June 17, 1983.

      Michael G. Trachtman, Norristown, for appellant.
    Wallace A. Murray, Jr., Norristown, for appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from the order of the Court of Common Pleas of Montgomery County, Civil Division, dated January 6, 1982, awarding appellee-wife alimony pendente lite in the sum of $160.00 per week plus $15.00 per week toward arrearages.

The facts of the case are as follows:

Appellant-husband and appellee-wife were married in June, 1976, and subsequently separated in September, 1980. Both parties have been married previously and have children from their prior marriages. Appellee resided in a dwelling with her father and three children from her prior marriage. Her father contributes $60.00 per week toward the household expenses. Appellee’s residence was purchased for $88,000.00 immediately following the marriage to appellant. Appellee contributed approximately $44,-200.00 toward this purchase while appellant contributed approximately $8,800.00. There is a purchase money mortgage of approximately $35,000.00, which is being paid by appellee. It is to be noted that appellee sold her home from her prior marriage so as to facilitate the purchase of appellant-appellee’s residence.

The appellee’s children from her prior marriage received, upon the death of their father, $15,000.00 each. Said funds were placed into money market certificates with the appel-lee designated as custodian under the Uniform Gift to Minor Act. At the time of the hearing in this matter, the yield of these certificates was 13.8%, or $6,210.00 per year. These children also receive social security in the amount of $11,088.00 per year, or $1,924.00 per month, which has been reduced by $308.00 a month due to the oldest child's failure to continue his schooling on a regular basis.

Appellant is the sole owner of an insurance adjusting business, Lafayette Adjustment Bureau. Gross receipts from the business during the year 1981 averaged $30,000.00 per month; expenses of independent contractors, utilized by appellant in the conduct of his business, during the same year averaged $19,650.00 per month. Appellant testified that the other business expenses for the year 1981 were $4,071.00 per month. Total business expenses for the year 1981 are projected at $284,655.00, $236,000.00 of which is attributable to the aforementioned independent contractors and $48,655.00 to other business expenses. Therefore, gross income, representing gross receipts less business expenses, is projected for 1981 at $75,345.00. Other business expenses represent personal expenses, thus increasing the effective net available for personal use.

Appellant resides in two rooms of his company’s office. Also, appellant claimed $11,703.00 as living expenses for 1981.

Appellee is an associate owner of a Real Estate Guide Book and expects to eventually realize a financial return from this endeavor. She claims, however, to have earned but $500.00 from this source as of the date of the hearing. In addition, appellee alleges she is unable to devote full-time to that endeavor due to her responsibilities to a son who is a manic depressive.

Appellee asserted expenses for herself of $1,660.00 per month. The lower court found these to be consistent with the comfortable standard of living the parties enjoyed during their marriage. Appellee stated that she had been given $2,000.00 per month by appellant for living expenses during their marriage.

Appellant raises two issues on appeal. These are: (1) whether the lower court erred as to the amount of alimony pendente lite granted to appellee, specifically as it relates to the appellee’s separate estate; and (2) whether the lower court erred in making the alimony pendente lite award retroactive?

In addressing appellant’s claim, we must first note the standard of review concerning the amount of alimony pen-dente lite awarded by the lower court. We have repeatedly held that the determination of the amount of alimony which should be awarded to a wife, pendente lite, is largely within the discretion of the hearing judge and that this court will not be reversed except for a plain abuse of that discretion. Mather v. Mather, 143 Pa.Super. 608, 18 A.2d 492 (1941); Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976).

Our court has well-enunciated the purpose of alimony pendente lite: “Alimony pendente lite is payable to a wife after the commencement of a divorce action for the purpose of providing her with an income during pendency of the action in order that she may not be put at a disadvantage financially by reason of her having brought the action or being required to defend it.” Kordich v. Kordich, 182 Pa.Super. 132, 134, 125 A.2d 471, 472 (1956); Jeffery v. Jeffery, 228 Pa.Super. 64, 296 A.2d 873 (1972). In determining whether this disadvantage exists, the trial court should consider the following factors; the husband’s ability to pay, the separate estate and income of the wife, and the character, situation and surroundings of the parties. Jeffery v. Jeffery, supra, Gangloff v. Gangloff, 163 Pa.Super. 570, 63 A.2d 115 (1949); Homler v. Homler, 120 Pa.Super. 66, 181 A. 840 (1936). See generally Freedman, Law of Marriage and Divorce in Pennsylvania, §§ 452-53 (1957).

Also, another criteria for measuring an award of alimony pendente lite is that it should not exceed one-third of the husband’s income from his property and labor. Wechsler v. Wechsler, supra; Gangloff v. Gangloff, supra.

In the present case, appellant contends that appellee should be required to borrow against her home before she is awarded alimony pendente lite. This proposition is not only inequitable, but contrary to the stated purpose of the Code. First, appellee’s home is still encumbered ($34,000.00 mortgage) and it serves as a residence for Mrs. Orr, her three children, and her father. The relevant policy provisions in 23 P.S. 102 state that:

(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

Therefore, to either compel appellee to sell her home or further encumber it would circumvent the policy consideration of promoting “the protection and preservation of the family.” Also, this would be totally inequitable in that the appellant has been ordered to pay far less than one-third of his income as alimony pendente lite. The evidence adduced at the lower court hearing demonstrated that the husband, as owner of a business which netted approximately $75,-000.00 in 1981, had both earning capacity and present income far in excess of his wife’s, (emphasis added) Moreover, the appellee’s financial requirements during the pend-ency of the divorce proceeding, based on the standard of living enjoyed by the parties during the marriage, were projected by the lower court at $1,660.00 per month, well in excess of her available income. While there are cases where a wife’s separate estate, whether non-liquid or liquid, could preclude her from receiving alimony pendente lite, this certainly is not one. Thus, we conclude the award of $160.00 per week in alimony pendente lite is reasonable.

Appellant next contends that the award of alimony pendente lite should not have been retroactive. Our court has held that an award of alimony pendente lite may be made retroactive to the filing of the petition, and since this is the case in the present action, we find no error. Scholl v. Scholl, 154 Pa.Super. 57, 35 A.2d 528 (1944); 12 P.L.E. § 152.

Order affirmed.

      . Until 1974, alimony pendente lite and reasonable counsel fees and expenses were only available to a wife. Act of May 2, 1929, P.L. 1237, § 46: Act of May 25, 1933, P.L. 1020, § 1: Act of Aug. 14, 1963, P.L. 1065, No. 462, § 1: Act of Oct. 19, 1967, P.L. 451, No. 207, § 1, 23 P.S. § 46 (1955); Act of June 27, 1974, P.L. 403, No. 139, § 1, 23 P.S. § 46. Consequently, courts have defined the standards governing alimony pendente lite and counsel fees and expenses in language focusing on the husband’s ability to pay and the wife’s right to recover. In response to the Pennsylvania Equal Rights Amendment, Pa. Const. Art. 1, § 28 (Supp.1976), the legislature amended the applicable statute to make alimony pendente lite and counsel fees and expenses available to both husband and wife. Act of April 2, 1980, P.L. 63, No. 26, 23 P.S., § 502 (1980). Because the instant case involves a petition for alimony pendente lite filed by a wife against her husband, it is appropriate to quote the traditional legal maxims without substituting gender-free words for "husband” and "wife.” It must be remembered, however, that the standards articulated in this opinion are now equally applicable when a husband seeks alimony pendente lite and reasonable counsel fees from his wife. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307, 1310 (1976).

      . A further matter was contained in appellant’s brief and was expressed at oral argument, that appellee in that she has received the ' award of alimony pendente lite is now delaying the divorce proceedings. It is to be noted that the purpose of an award of alimony pendente lite is to "maintain the wife” during the pendency of her divorce action and her receiving this award should not cause her to delay the divorce proceedings. Koehler v. Koehler, 73 Pa.Super. 41, 43 (1919); Gangloff v. Gangloff, supra. Thus, we direct the parties to engage in conduct that will expeditiously resolve their divorce proceedings.


author: WIEAND, Judge:

text:
    461 A.2d 853
    COMMONWEALTH of Pennsylvania v. Edward MOYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1983.
    Filed June 17, 1983.

      Gilbert E. Toll, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Edward Moyer was tried nonjury and convicted of burglary, criminal trespass and conspiracy. His post verdict motions were denied, and Moyer was sentenced to concurrent terms of imprisonment for not less than one (1) nor more than three (3) years on the convictions for burglary and conspiracy. In this direct appeal from the judgment of sentence, Moyer complains (1) that he was required to submit to fingerprinting in open court in violation of his constitutional rights and (2) that trial counsel’s failure to seek suppression of oral statements constituted ineffectiveness. These contentions are lacking in merit; and the judgment of sentence, therefore, will be affirmed.

While on routine patrol in the Mount Airy section of the City of Philadelphia, Police Officers John LaCon and John DeLoach observed the shadows of two men leaving the rear of Black’s Meat Market through an open door. As the officers approached, the men went back into the market and slammed the door. Shortly thereafter, a plate glass window in the front of the store was shattered by a barstool thrown through it. A third policeman, Officer Anthony Yivino, observed two black males leave the market through the broken window. Vivino took one of the men into custody; the other ran in the opposite direction and eluded him. A description of the second man was broadcast over police radio, and an individual fitting the given description was quickly found by Officers LaCon and DeLoach at a point three blocks from the scene. He was walking rapidly in a direction away from the market, was sweating profusely and had shards of glass in his hair. Following preliminary questioning, the man, identified as Edward Moyer, was returned to the scene. There he was identified immediately by Officer Vivino. At trial, the three police officers were unable to identify appellant, whose appearance had changed dramatically because of the growth of a beard and long hair. The Commonwealth then called a fingerprint expert who compared file fingerprints taken from Edward Moyer following apprehension on the night of the incident with fingerprint impressions taken from appellant at trial. The expert demonstrated that the two sets of prints belonged to the same person.

“Fingerprint evidence is a non-testimonial means of identification to which the Fifth Amendment Self Incrimination Clause does not apply.” Commonwealth v. Jefferson, 445 Pa. 1, 8, 281 A.2d 852, 856 (1971). “[T]he privilege against self-incrimination ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The prohibition is not ‘an exclusion of [defendant’s] body as evidence when it may be material.’ Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910).” United States ex rel. O’Halloran v. Rundle, 266 F.Supp. 173 (E.D.Pa.), aff'd, 384 F.2d 997 (3d Cir.1967), cert. denied, 393 U.S. 860, 89 S.Ct. 138, 21 L.Ed.2d 128 (1968).

It was essential that the Commonwealth establish that appellant was the individual who had been apprehended following the incident at Black’s Meat Market. When traditional means of identification proved unavailing, the Commonwealth was compelled to use other means for establishing appellant’s identity. The comparison of fingerprints was a proper means for doing so. The fingerprinting of appellant in open court before the trier of fact was not inflammatory or prejudicial so as to render appellant’s trial unfair. A similar procedure, in which a fingerprinting of the defendant had taken place in the presence of the jury, was held unobjectionable in United States ex rel. O’Halloran v. Rundle, supra. The result cannot be otherwise where, as here, the fingerprinting procedure was conducted before a judge sitting as trier of fact without a jury. See also: Commonwealth v. Jefferson, supra 445 Pa. at 7-8, 281 A.2d at 855-856 (trial judge had sufficient justification to order defendant to submit during trial to recording of his fingerprints in order to establish identity with prints taken from the vehicle in which the homicide occurred). Indeed, it is difficult to comprehend how appellant could have been prejudiced unfairly merely because fingerprints taken during trial were shown to belong to the same person whose prints had been taken at the time of the crime.

Appellant’s claim of ineffective assistance by trial counsel is patently frivolous. Represented on appeal by new counsel, appellant argues that trial counsel erred in failing to move for the suppression of oral statements purportedly used against appellant at trial. An examination of the record, however, discloses that no statements were in fact admitted into evidence at trial. On the contrary, the record discloses that appellant made no inculpatory statement at the time of his arrest. Where, as here, there was no inculpatory statement subject to being suppresséd, it is readily apparent that a suppression motion would have been futile. Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Therefore, appellant’s allegation of ineffectiveness must be rejected. See: Commonwealth v. Penn, 497 Pa. 232, 247, 439 A.2d 1154, 1162 (1982); Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982).

The judgment of sentence is affirmed.


author: CIRILLO, Judge:

text:
    461 A.2d 856
    Charlie RAGIN, Appellant, v. ROYAL GLOBE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 2, 1982.
    Filed June 17, 1983.

      Stephen Rodos, Philadelphia, for appellant.
    George D. Sheehan, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

On April 18, 1979, appellant was injured when the automobile he was driving collided with that of another driver. As a result of his claim against the other driver, Aetna Insurance Company, the other driver’s insurer, paid him $15,000. This was the maximum amount appellant could recover under that driver’s insurance policy. Since appellant believed that this amount did not fully compensate him for his injuries, he filed a claim with his own insurer, appellee, Royal Globe Insurance Company (“Royal Globe”), seeking to recover additional sums under the uninsured motorist provision of his insurance policy. After Royal Globe refused payment, appellant filed a motion to compel arbitration. An order to arbitrate was subsequently issued by the lower court. After a hearing, the panel of arbitrators awarded appellant $15,000 under the uninsured motorist provision of his policy. On July 13, 1981, upon motion of Royal Globe, the lower court entered an order vacating the award, and entered judgment in favor of Royal Globe. This appeal followed.

Appellant’s first contention is that he is entitled to recover under the uninsured motorist clause of his insurance policy because the other driver’s liability coverage was not sufficient to compensate him fully for the injuries he sustained. More specifically, appellant argues that an underinsured driver is considered to be an uninsured driver under the Act of August 14, 1963, P.L. 909, § 1, as amended, Act of December 19, 1968, P.L. 1254, No. 397, § 1, 40 Pa.C.S.A. 2000(a). We disagree.

Initially, we note that the other driver was insured for the minimum amount required under Pennsylvania law. Therefore, White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713 (1982) controls the resolution of this issue. In White, an en banc panel of this court held that a motorist who has insured his automobile in compliance with Pennsylvania law is not considered to be an uninsured motorist under 40 Pa.C.S.A. 2000(a). Consequently, one who is involved in an accident with such a driver, and who incurs damages in excess of the amount recoverable under the other driver’s insurance policy, is not entitled to recover additional damages under the uninsured motorist provision of his own policy of automobile insurance.

Appellant’s second contention is that the arbitration award may not be vacated absent a showing of fraud or misconduct on the part of the arbitrators, or the denial of a hearing.

The standard of review in the instant case is governed by the Pennsylvania Arbitration Act, Act of October 5, 1980, P.L. 693, No. 142, § 501, 42 Pa.C.S.A. § 7302 which provides, in pertinent part:

§ 7302. Scope of subchapter
(a) General rule.—An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Sub-chapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this sub-chapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a differ ent judgment or a judgment notwithstanding the verdict;. (emphasis supplied)

Therefore, we hold that where relief has been awarded due to an egregious mistake of law on the part of the arbitrators, the award may be vacated. This court also agrees with the reasoning employed by Justice Pomeroy in Runew-icz v. Keystone Insurance Company, 476 Pa. 456, 383 A.2d 189 (1978):

Just as the courts should be steadfast in upholding the validity of arbitration awards against unwarranted appeals for judicial intervention, so should they be diligent to strike down an award which is palpably made in bad faith, ignorance of the law, [or] indifference to the justice of the result. For an arbitrator to say that an insured vehicle is uninsured is such a flagrant case. Judicial approval of an award so irresponsible will ... serve to erode the public confidence on which the arbitration system in the field of casualty insurance depends; such approval can only increase the resort to the courts that the majority believes its decision will help avert.

476 Pa. at 467, 383 A.2d at 194-95 (dissenting opinion) (citation omitted). See also, 6A A. Corbin, Contracts, § 1439 at 417 (an arbitration award can be set aside for fraud, collusion, or a manifest disregard of the law).

In order to establish legal order within the arbitration process, courts must refuse to sanction monetary awards which are contrary to law, inequitable, unjust, or the apparent result of prejudice on the part of the arbitrators. See, Allstate v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). See also, H. Kronstein, Arbitration is Power, 38 N.Y.U.L.Rev. 66 (1963); I. Cominskey and M. Cominskey, Commercial Arbitration—Panacea or Nightmare?, 47 Temp. L.Q. 457 (1974).

Moreover, we believe that it would be unconscionable to allow appellant in the instant case to recover additional sums where he has already been compensated by the other driver and where his own policy did not permit additional recovery. Therefore, the lower court correctly vacated the award and entered judgment in favor of Royal Globe.

Order affirmed.

      . Section 2000(a) provides, in pertinent part:
      § 2000. Motorists uninsured, insurance protection
      (a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of "The Vehicle Code,” act of April 29, 1959 (P.L. 58) ..., under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom____

      . Automobiles registered in Pennsylvania are required to carry liability insurance of at least $15,000 per person and $30,000 per accident. Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 104, 40 Pa.C.S.A. § 1009.104(a). The carrying of insurance in this amount constitutes proof of financial responsibility. Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S.A. § 1747.

      . This is not a novel rule of law in Pennsylvania. See, Fireman’s Insurance Company of Newark, N.J. v. Dufrense, 513 F.Supp. 675 (E.D.Pa.1981); Prudential Property and Casualty Insurance Co. v. Pont, 489 F.Supp. 9 (E.D.Pa.1979).

      . The declaration sheet of the insurance policy in the instant case provided that if either party demanded arbitration to resolve a dispute regarding uninsured motorist coverage, the proceedings would be governed by the Pennsylvania Arbitration Act, Act of April 25, 1927, P.L. 381, No. 248, § 1, 5 Pa.C.S.A. 161, et seq. Therefore, principles governing statutory arbitration apply in the instant case. See, Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); See also, Keeler v. Local I.B. of T., W. & H., 423 Pa. 353, 223 A.2d 724 (1966); Harwitz v. Selas Corp. of America, 406 Pa. 539, 178 A.2d 617 (1962). The Act of April 25, 1927 has since been repealed by the Act of October 5, 1980, P.L. 693, No. 142, § 501(7), 42 Pa.C.S.A. § 7301 et seq.

      . Section 7302 applies to the instant case because Section 501(b) of Act of 1980, Oct. 5, P.L. 693, No. 142, provides as follows:
      (b) The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
      (1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration.
      (2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.


author: HOFFMAN, Judge:

text:
    461 A.2d 859
    Irving S. KARPE, Appellant, v. BOROUGH OF STROUDSBURG.
    Superior Court of Pennsylvania.
    Submitted April 6, 1983.
    Filed June 17, 1983.

      Edwin Krawitz, East Stroudsburg, for appellant.
    Phillip H. Williams, Stroudsburg, for appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his claim for damages. Because this case involves the application, interpretation, and enforcement of a statute regulating the affairs of local authorities and the officers, employees and agents thereof, 42 Pa.C.S.A. § 762(a)(4)(i)(A), we transfer jurisdiction over the appeal to the Commonwealth Court.

On March 9, 1977, appellant applied for and later received a permit from the Zoning Officer of the Borough of Stroudsburg, appellee, to establish an off-street parking facility. Appellee’s request that the Zoning Hearing Board revoke the permit was granted on March 27, 1978. Appellant sued for damages resulting from the start of construction. The lower court, sitting without a jury, found in favor of appellee. An appeal from the denial of post-trial motions was quashed by our Court in Karpe v. Borough of Strouds-burg, 290 Pa.Superior Ct. 559, 434 A.2d 1292 (1981), because no final judgment had been entered. On November 19, 1981 that defect was corrected, prompting this appeal.

The Superior Court’s appellate jurisdiction is as follows:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

42 Pa.C.S.A. § 742. The Commonwealth Court has exclusive jurisdiction of appeals from the courts of common pleas in cases involving

(4) Local government civil and criminal matters.—

(i) All actions or proceedings arising under any municipality, institution, district, public school, planning or zoning code or under which a municipality or other political subdivision or municipality authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any: (A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof, acting in their official capacity; ...

42 Pa.C.S.A. § 762(a)(4)(i)(A). The instant appeal, though on its face an action for damages, involves consideration and interpretation of 53 P.S. § 10101 et seq., the Pennsylvania Municipalities Planning Code, (Planning Code) which enables appellee to plan its development through, inter alia, zoning and development ordinances. Act of July 31, 1968, P.L. 805, as amended June 1, 1972, P.L. 333, No. 93. Therefore, the subject matter jurisdiction of this appeal lies with the Commonwealth Court.

We must decide, however, whether to exercise our discretion and hear this appeal, or transfer it to the Commonwealth Court, as neither party has objected to our jurisdiction. Transfers between the intermediate appellate courts may be effected by “[T]he Superior Court and the Commonwealth Court ... on their own motion or upon petition of any party, to transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion.” 42 Pa.C.S.A. § 705. Each potential transfer must be examined on a case-by-case basis. Valley Forge Industries, Inc. v. Armand Construction, Inc., 248 Pa.Superior Ct. 53, 61, 374 A.2d 1312, 1316 (1977). The factors to be weighed include: (1) whether the case has already been transferred; (2) the possibility of establishing two conflicting lines of authority on one subject; (3) whether the “legislatively ordained division of labor” would be disrupted. Commonwealth v. 84-Qt. Btls. Bianco DiVerona Wine, 250 Pa.Superior Ct. 544, 550, 378 A.2d 1282, 1285 (1977). See Valley Forge Industries, Inc. v. Armand Construction, Inc., supra, 248 Pa.Superior at 60-61, 374 A.2d at 1316.

This case has not been previously transferred from our coordinate court, so the expense and delay to the parties will be minimal. We find that it would benefit both the public and the municipalities and boroughs operating under the Planning Code if substantive decisions on the statute and its application to damages actions resulting from its enforcement, were made by one court. Further, the division of labor envisioned by the legislature would be served rather than disrupted if the Commonwealth Court heard all appeals involving the application, interpretation and enforcement of the Planning Code.

Accordingly, we transfer this appeal and the accompanying record to the Commonwealth Court.

Appeal transferred.


author: PER CURIAM:

text:
    461 A.2d 861
    William E. COYLE and Kathleen Coyle, His Wife, Appellants v. Charles F. STALEY.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed June 17, 1983.

      C. Andrew McGhee, Pittsburgh, for appellants.
    John A. Bacharach, Pittsburgh, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from the granting of a summary judgment in favor of appellee-Staley. Appellant’s statement of the case succinctly sets forth the history of this case.

As the result of an automobile accident involving appellant husband and appellee on March 17, 1979, appellant husband suffered certain back and neck injuries. Appellant husband incurred medical expenses in excess of the no-fault threshold of $750.00. A substantial portion of appellant husband’s expense resulted from out-patient physical therapy treatments prescribed by his treating physician and performed at St. Clair Hospital. Unless appellant husband’s physical therapy expenses are included in the threshold amount, his expenses will not exceed $750.00. The Court below granted Appellee’s Motion for Summary Judgment on the grounds that appellant husband’s physical therapy expenses in excess of $100 should be excluded from the threshold as “rehabilitation costs” under 40 Pa.C.S.A. § 1009.301(a)(5)(B).

The issue before this court is whether, for purposes of meeting the $750 threshold, physical therapy should be excluded to the extent it exceeds $100. This issue was recently squarely addressed by our Supreme Court in Dragun v. Volk, 500 Pa. 613, 459 A.2d 333 (1983). The Supreme Court held:

[P]hysical therapy expenses are not necessarily rehabilitation costs and therefore, [we] remand the record to Common Pleas for determination of whether appellant’s physical therapy expenses were rehabilitation costs or reasonable medical services under the circumstances of this case as it develops. At 615.

In the current case the parties submitted the case on stipulations. The only discovery of record were interrogatories submitted by appellee and answered by appellant. The interrogatories include various records and reports pertaining to physical therapy. Such documents demonstrate that the therapy occurred over a period of time from March 21, 1979 to April 23, 1979. The initial “Department Care Plan” indicates that the goal of the sessions was “to relieve pain in cervical and shoulder region.”

Under the rationale of Dragun, such therapy could fall within the meaning of “primary treatment of an ailment”, i.e., “reasonable medical services.” We are bound by the Supreme Court’s “unwilling[ness] to conclude [that] the legislature declared or intended that expenses for treatment; rendered by a physical therapist are ‘rehabilitative costs’ under all circumstances .... ” at 619. In reviewing a motion for summary judgment a court must look to not only the pleadings but other documents of record, including answers to interrogatories. Rule 1035, Pa.C.P. In the current case the interrogatories did raise a question of material fact as to whether or not the physical therapy was for rehabilitative purposes. Accordingly, summary judgment was improperly granted.

Order reversed and case is remanded for further proceedings consistent with Dragun and not inconsistent with this opinion. We do not retain jurisdiction.

      . The Court overruled this court’s decision in the same case published at 301 Pa.Superior Ct. 443, 447 A.2d 1381 (1982). We have held up decision in this case awaiting the Supreme Court’s decision in Dragun.


text:
    461 A.2d 862
    In the Matter of the ADOPTION OF J.D.P. Appeal of G.P.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1983.
    Filed June 17, 1983.

      Stephanie Domitrovich, Erie, for appellant.
    Marilyn Woolery, Erie, for appellee.
    Dennis V. Williams, Erie, for participating party.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from an order terminating the parental rights of appellant G.P., natural father of J.D.P., on the ground that the repeated and continued incapacity and neglect of G.P. has caused J.D.P. to be without essential parental care and control and the conditions and causes of this incapacity and neglect cannot or will not be remedied. 23 Pa.C.S.A. § 2511(a)(2).

The instant Petition for Involuntary Termination of appellant’s parental rights was filed on January 12, 1982, and a hearing thereon was held on March 2, 1982. At the conclusion of the hearing, the court entered an order terminating appellant’s parental rights. Exceptions were timely filed and denied. This appeal followed.

During the pendency of this case, the United States Supreme Court held that an order terminating parental rights must be supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The effect of this decision was to raise the burden of proof required in involuntary termination of parental rights cases from a “preponderance of the evidence” to “clear and convincing evidence.”

This court subsequently determined that this higher burden of proof must be applied to any case in which an order of termination was entered by a lower court prior to the Santosky decision but which had not yet been finally decided on appeal and that such cases must be remanded to the trial court for further proceedings in accord with the Santo-sky standard. In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983). For the reasons contained in that opinion, therefore, we must vacate the order entered in this case and remand it for further proceedings in accordance with the decision in In re: Adoption of M.E.T., supra.

Order vacated. Case remanded for further proceedings not inconsistent with the opinion in In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983). We do not retain jurisdiction.