author: CIRILLO, Judge:

text:
    493 A.2d 1375
    AETNA-STANDARD ENGINEERING COMPANY, Appellant, v. Leroy R. ROWLAND.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1984.
    Filed May 31, 1985.

      Walter J. Blenko, Jr., Pittsburgh, for appellant.
    William H. Logsdon, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   CIRILLO, Judge:

Appellant Aetna-Standard Engineering Co. (“Aetna”) challenges a final decree in equity of the Court of Common Pleas of Butler County, entered May 12, 1983. That decree dismissed both appellant’s and appellee Leroy V. Rowland’s exceptions, and adopted the trial court’s December 30, 1982, order. That order, in turn: 1) declared appellee to be the sole owner of the subject matter in certain enumerated claims in United States Patent 4,037,453; 2) declared appel-lee to be a joint inventor, with Robert A. Remner, of certain other enumerated claims in the patent; 3) required appellant to execute any documents appellee needed to perfect his ownership interest in the patent; and 4) gave appellant a shop right in the patent limited to the project contract with Ishikawajima-Harima Heavy Industries (“IHI”), a Japanese firm for which the patented article was invented.

Appellant now presents three questions:

1. ) Where an employee is hired as a skillful designer of machinery and is assigned to devote his time and skill to solve a specific problem by designing a new machine, does the employer own any invention in the new machine?
2. ) Assuming, arguendo, that the employer does not own an invention made by the employee as a result of his work assignment, does the employer receive an irrevocable, royalty-free license or “shop right”?
3. ) Where United States Letters Patent issue as a result of a joint invention, does each inventor hold an undivided interest in the entire patent?

We conclude that appellant is not entitled to an assignment of appellee’s invention, but that it has a shop right for the invention’s use. In addition, appellee, as a joint inventor, holds an indivisible joint interest in the patent.

We note first that the present controversy does not concern the validity or an infringement of the involved patent; such disputes are for a federal court’s resolution. See generally 35 U.S.C. §§ 281-294 (remedies for infringement); Healy v. Sea Gull Specialty Co., 237 U.S. 479, 35 S.Ct. 658, 59 L.Ed. 1056 (1914); Rubens v. Bowers, 136 F.2d 887 (9th Cir.1943). Appellant Aetna’s questions presented pertain instead to the assignment and divided ownership of patent rights and to shop rights in a patented invention. These “incidental and collateral” issues of property rights in an invention a state court may entertain. Quaker State Oil Refining Co. v. Talbot, 315 Pa. 517, 174 A. 99, appeal after remand 322 Pa. 155, 158, 185 A. 586, 587 (1936). See also Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965); Slemmer’s Appeal, 58 Pa. 155 (1868).

We also note that appellant does not allege that appellee, by retaining his interest in the instant patent, has misappropriated any trade secrets of appellant. Such an allegation would be separate from and independent of assignment, joint inventor and shop right issues.

The major body of law on an employer’s and employee’s respective rights in the inventive or creative work of the employee evolved in the nineteenth and early twentieth centuries during our nation’s industrial revolution. The United States Supreme Court has announced several rules for defining these rights. In the leading case of United States v. Dubilier Condenser Corp., 289 U.S. 178, 53 S.Ct. 554, 77 L.Ed. 1114 (1933), the Court stated that the mere existence of an employer-employee relationship does not of itself entitle the employer to an assignment of any inventions which the employee devises during the employment.

At the same time, however, the absence from the employment contract of an express agreement to assign will not preclude the employer as a matter of law from asserting a claim to the employee’s invention. See Agawam Co. v. Jordan, 74 U.S. (7 Wall.) 583, 19 L.Ed. 177 (1868). Instead, a court must closely scrutinize the employment contract, so that, absent an express contrary agreement, an employee must assign his invention to his employer if he was hired for the purpose of using his inventive ability to solve a specific problem or to design a certain procedure or device for the employer; in such a case, the invention is the precise subject of the employment contract. Dubilier Condenser, supra; Standard Parts Co. v. Peck, 264 U.S. 52, 44 S.Ct. 239, 68 L.Ed. 560 (1924); Solomons v. United States, 137 U.S. 342, 11 S.Ct. 88, 34 L.Ed. 667 (1890). Given the personal, intellectual nature of the inventive process, the courts must otherwise hesitate to imply agreements to assign. Dubilier Condenser, supra. See generally N. Alam, “Employers’ Obligations Regarding Employee Inventions — A New Perspective,” 8 Empl.Rel.LJ. 463 (1982-83); Comment, “Reform for Rights of Employed Inventors,” 57 S.Cal.L.Rev. 603 (1984).

Although an employer might not be entitled to an assignment of the employee’s invention — that is, of his patent — the employer will likely have a license or “shop right” to use the invention without paying the employee any additional compensation as royalties; the shop-right rule thus creates an exception from the employee's patent right to exclude others from making or using his invention. As in the law on assignment of inventions, the employment relationship, standing alone, does not give the employer a shop right; the employer might have to show an express agreement for the right. See McAleer v. United States, 150 U.S. 424, 14 S.Ct. 160, 37 L.Ed. 1130 (1893). A shop right will arise, however, where the employee devises the invention on the employer’s time and at the latter’s expense, using his materials and facilities, and allows him to use the invention without special compensation. See Dubilier Condenser, supra; Gill v. United States, 160 U.S. 426, 16 S.Ct. 322, 40 L.Ed. 480 (1896); Keyes v. Eureka Consolidated Mining Co., 158 U.S. 150, 15 S.Ct. 772, 39 L.Ed. 929 (1895); Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 S.Ct. 78, 37 L.Ed. 1049 (1893); Dalzell v. Dueber Watch Case Manufacturing Co., 149 U.S. 315, 13 S.Ct. 886, 37 L.Ed. 749 (1892); Solomons v. United States, supra; Wade v. Metcalf, 129 U.S. 202, 9 S.Ct. 271, 32 L.Ed. 661 (1889); Hapgood v. Hewitt, 119 U.S. 226, 7 S.Ct. 193, 30 L.Ed. 369 (1886); McClurg v. Kingsland, 42 U.S. (1 How.) 202, 11 L.Ed. 102 (1843). See also S.P. Sondrock, “Evolution and Modern Application of the Shop Right Rule,” 38 Bus.Law. 953 (1983). Under this rule, an employee may not recover on an implied contract for payment for the shop right. Gill v. United States, supra.

The Pennsylvania courts, and the federal courts sitting in Pennsylvania, have long applied the Supreme Court’s rules on employers’ and employees’ rights to inventions virtually verbatim. In the early case of Slemmer’s Appeal, supra, the plaintiffs claimed to be joint inventors with the defendant employee of a patented invention. Our Supreme Court could not agree with the plaintiffs, as such a holding would invalidate the patent, an action beyond the Court’s jurisdiction. Instead, the Court applied a license theory, and stated:

[I]f a person employed in the manufactory of another, while receiving wages, makes experiments at the expense of his employer, constructs the article invented and permits his employer to use it, no compensation for the use being paid or demanded, and then obtains a patent, these facts will justify the presumption of a license to use the invention.

Slemmer’s Appeal, 58 Pa. at 167.

This principle was followed in Dempsey v. Dobson, 174 Pa. 122, 34 A. 459, appeal after remand 184 Pa. 588, 39 A. 493 (1898). There, the plaintiff employee was a color-mixer for a carpetmaker.. His duties were to blend dyes for decorating the carpets, and then to record the dyes’ formu-lae in “recipe books”; the employee wanted to take these books with him when he quit the employer’s shop. The Court noted that the employee had been hired, and his wages fixed, with reference to his skill and experience in using dyes and making carpets, and that he was not an independent contractor using his own secret processes.

In the first appeal, the Court viewed Dempsey as a much stronger case for the employer than had been Slemmer’s Appeal: in Dempsey, the dye experiments, recorded in the recipe books, were not only conducted at the employer’s expense but also at his request and for use in his business. In addition, the employee had been hired because of his special skill and experience in working with dyes. Accordingly, the employee could use his own color books in his future employment, but his former employer had a license to do likewise. Dempsey, 174 Pa. at 130-31, 34 A. at 461.

The Court reiterated this rule in the appeal after remand, over the employee’s claim that it was a trade custom for color-mixers to take their dye formulae with them when they left a particular manufacturer. Such a “custom,” the Court said, was invalid as illegal and unreasonable: a mixer is employed because of his particular skill, and cannot harm his employer’s business by removing the results of that skill and denying the employer’s license to use them. Dempsey, 184 Pa. at 592-93, 39 A. at 493.

Other cases have applied these same rules on implied licenses or shop rights. See Ingle v. Landis Tool Co., 272 Fed. 464 (3d Cir.1921), cert. denied 257 U.S. 644, 42 S.Ct. 54, 66 L.Ed. 413 (1921); Pressed Steel Car Co. v. Hansen, 137 Fed. 403 (3d Cir.1905), cert. denied 199 U.S. 608, 26 S.Ct. 749, 50 L.Ed. 331 (1905); Wellington Print Works, Inc. v. Magid, 242 F.Supp. 614 (E.D.Pa.1965); Kurtzon v. Sterling Industries, Inc., 228 F.Supp. 696 (E.D.Pa.1964); Toner v. Sobelman, 86 F.Supp. 369 (E.D.Pa.1949).

In White Heat Products Co. v. Thomas, 266 Pa. 551, 109 A. 685 (1920), our Supreme Court made clear that the “black-letter law” of employer and employee rights to a patented invention must be applied to the facts of a case with careful regard to the particular terms of the individual employment contract. In White Heat, the defendant employee, hired as an expert in the use of silica, designed and patented an abrasive grinding wheel. The employer sought to compel him to disclose his invention and to assign his patent to it. The Court, however, held that

where the product of an inventive mind is sought to be appropriated under an agreement to assign to another, the language of the agreement must be clear and show an unmistakable intention that the particular matter covered by the invention or patent is within the invention of the parties.

Id., 266 Pa. at 555, 109 A. at 686 (citations omitted).

The White Heat Court found no such clarity in the agreement before it. The plaintiff was in the business of making products for use in building, and the defendant had contracted to assign to it any patents he received for inventions relating to brick-making. The abrasive wheel, the Court found, was not related to building, and so was outside the assignment contract, nor did the plaintiff have an implied, irrevocable license to use the wheel, where it was designed, and its preliminary construction done, outside working hours and at another plant; in addition, the labor to complete the wheel was performed subject to negotiations between the plaintiff and defendant for the defendant’s share of the profits made from the wheel’s sale, and the defendant had not consented to the plaintiff’s use of the wheel without demanding an agreement on compensation. Id., 266 Pa. at 557, 109 A. at 686-87.

Quaker State Oil Refining Co. v. Talbot, supra, presented a factual situation seemingly similar to that in the case now before us. In Quaker State, the defendant employee was hired by an oral contract to design a specific oil dispensing drumhead for the plaintiff to manufacture. He designed the drumhead, but incorporated into it several devices which he had invented before his employment with the plaintiff. The plaintiff, as in White Heat, supra, sought to compel the defendant to assign to it legal title to, or any patent application or patents for, the drumhead.

At the time of the first appeal in Quaker State, certain patent issues involving the drumhead had not been settled under federal law; the Court therefore had to remand for further proceedings pending final disposition of these matters. However, regarding any assignment arguments, the Court noted:

Where an employee by contract is hired to make a particular invention or solve a specific problem for the employer the property in the inventions of the employee belongs to the employer — the employee has sold in advance the fruit of his talent, skill and knowledge, to his employer, who is equitably entitled to it; in making such inventions or solving such problems the employee is merely doing what he was hired to do.

Quaker State, 315 Pa. at 523, 174 A. at 101-02 (citations omitted). See also Hirshhom v. Mine Safety Appliances Co., 106 F.Supp. 594 (W.D.Pa.1952), aff'd. 203 F.2d 279 (3d Cir.1953), cert. denied 346 U.S. 866, 74 S.Ct. 105, 98 L.Ed. 376 (1953). But see Pressed Steel Car, supra (where skilled workman is hired at substantial salary to manage employer’s manufacturing works, employer is not entitled to assignment of employee’s patents as a matter of law, but must show express agreement to convey them). See also Hildreth v. Duff, 143 Fed. 139, aff'd. 148 Fed. 676 (3d Cir.1906). The Quaker State Court also commented that, independent of the employer’s right to the completed drum-head, it had no rights in any of the individual component devices which the employee had patented before commencing work for it, unless it paid him appropriate compensation. Quaker State, 315 Pa. at 528, 174 A. at 103.

Deciding an employer’s and employee’s rights in an invention patented by the employee thus requires close examination of the employment contract, of any assignment provisions in that contract, of the nature of the employment, and of the circumstances surrounding the invention in dispute. Proof of an employer-employee relationship does not alone give the employer rights in the invention, particularly where the contract was for general employment. On the other hand, the existence of a patent in the employee’s name does not itself bar the employer’s claim. During our examination, we keep in mind that a court must hesitate to imply agreements to assign, although it may readily grant the employer a shop right to use the invention.

In the instant case, Rowland’s resume, by which he applied to Aetna for employment, recited his training and experience in engineering, particularly in engineering design. Rowland testified that he commenced employment with Aetna with no understanding that he would be paid to design new equipment. He had no written contract with Aetna, nor an oral agreement to assign to it any inventions he designed during his employment; he was not specifically informed that his duties included devising new inventions. In addition, he received no pay increase upon his assignment to the IHI project, but was instructed that he was to develop a “plug mill receiving table” for the IHI mill, the subject of Aetna’s project contract with that firm. After completion of the table design, Rowland signed a disclosure document for the table as a joint inventor with Remner, who had been his supervisor on the project. Rowland met with Aetna's patent attorney to explain the drawings of the table. Upon the company’s request, Rowland also signed the application for the patent, which similarly named him and Remner as joint inventors. However, he was later put on lay-off from Aetna; at this time, the latter asked him to assign his interest in the patent to it. He refused. Rem-ner, who also no longer worked for Aetna, assigned his interest. See 35 U.S.C. § 261 (“Ownership; assignment”); Lalance Manufacturing Co. v. National Enameling Co., 108 Fed. 77 (2d Cir.1901).

On these facts, appellant is not entitled to an assignment of appellee’s invention of the table. Appellee was hired as a general staff engineer; he was not recruited specifically to design the IHI table, in contrast to the situation presented in Quaker State, supra. He received no special coftipensation for his work on the IHI contract; rather, that work was simply within the normal scope of his duties as an Aetna engineer. More importantly, he had no express agreement with appellant, written or oral, to assign to it any inventions he created during his employment. Finally, appellant asked appellee to sign the disclosure document and, most significantly, the patent application, as a joint inventor with Remner: appellant made no claim to the patent until after it had discharged appellee. On these facts, we cannot imply an agreement in appellee’s employment contract to assign his invention to appellant.

However, we find that, under the case-law discussed above, appellant has a shop right to use the patented table. Appellee testified that he assumed appellant would own any inventions he designed. The table was designed at appellant’s place of business and with its resources for appellant’s IHI contract. While appellant has no right to appellee’s patent interest, it is entitled to the royalty-free, non-exclusive use of the table in its IHI project.

Finally, it is beyond question that joint inventors or co-owners of a patent have indivisible rights to the whole patent, which rights cannot be fragmented into claim-by-claim interests. See Talbot v. Quaker State, supra at 968; GAF Corp. v. Amchem Products, Inc., 514 F.Supp. 943 (E.D.Pa.1981); 35 U.S.C. § 116 (“Inventors”). Thus, the trial court erred in defining Remner’s and Rowland’s interests in the instant patent on a per-claim basis. Instead, each inventor had an undivided one-half interest in the entire patent; Aetna owns Remner’s half-interest by the latter’s assignment.

The decree of the Court of Common Pleas of Butler County is affirmed insofar as it requires appellant to execute documents necessary for appellee to perfect his interest in United States Patent No. 4,037,453 and declares appellant to have a shop right in the patent for the IHI contract. The decree is reversed insofar as it declares appellee and Robert A. Remner to be owners or co-owners of individual claims of the said patent.

Affirmed in part, reversed in part.

      . As will be seen, appellant Aetna may question the nature of a joint inventor’s interest in a patent because Remner assigned his interest in the patent in dispute to appellant; appellant thus has a direct interest in the resolution of this question.

      . On an employee’s abuse of confidence and misappropriation of his employer’s trade secrets, see FMC Corp. v. Spurlin, 596 F.Supp. 609 (W.D.Pa.1984); Reinforced Molding Corp. v. General Electric Co., 592 F.Supp. 1083 (W.D.Pa.1984); Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); Van Products, supra; West Mountain Poultry Co. v. Gress, 309 Pa.Super. 361, 455 A.2d 651 (1982); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982); Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 422 A.2d 148 (1980). Trade secret, patent and shop right issues are closely related, but a federal court’s finding that a patent was not infringed will not by itself bar an employer’s claim under state law for misappropriation of trade secrets. Sims v. Mack Truck Corp., Etc., 608 F.2d 87 (3d Cir.1979), cert. denied 445 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 764 (1980); Rohm and Haas Co. v. Adco Chemical Co., 689 F.2d 424 (3d Cir.1982). See also P.W. Leuzzi, "Process Inventions: Trade Secret or Patent Protection,” 66 J.Pat.Off.Soc’y. 159 (1984).

      . The modern "industrial revolution” is manifest in the growing body of law on computer products, bioengineering, and the electronic recording and reproduction of information. See, e.g., Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574, rehearing denied 465 U.S. 1112, 104 S.Ct. 1619, 80 L.Ed.2d 148 (1984) (sale of video recorders for use in homes not a contributory infringement of television program copyrights); Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) (genetically engineered microorganism patentable "process” under 35 U.S.C. § 101); Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972) (method for programming ordinary digital computer to convert binary coded decimal numerals into pure binary numerals not a patentable "process” under 35 U.S.C. § 101); Stephen Breyer, "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs," 84 Harv.L.Rev. 281 (1970); E.W. Guttag, “The Patentability of Microorganisms: Statutory Subject Matter and Other Living Things,” 13 U.Rich.L.Rev. 247 (1979); R.O. Nimtz, “The Patentability of Computer Programs,” Rutgers J. Computers & Law 1970:38 (1970).

      . After Quaker State was returned to the trial court, Talbot and another individual filed suit in a federal district court, alleging Quaker State’s patent infringement. See Talbot v. Quaker State Oil Refining Co., 104 F.2d 967 (3d Cir.1939). The state trial court then entered a decree finding that none of Talbot’s devices, invented before he joined Quaker State, were patentable, and that he was thus not entitled to compensation for Quaker State’s use of them. On the second appeal, our Supreme Court vacated the decree, on the ground that a state court may not determine patentability, and remanded again for a determination of the compensation due Talbot, pending the federal court’s determination that Talbot did in fact hold valid patents. Quaker State, 322 Pa. at 160, 185 A. at 588.

      . Seamless tubes first exit a “piercing mill,” and then are rolled onto a “plug mill,” which rotates them to decrease the thickness of their walls. A “plug mill receiving table” moves the tubes from the piercing mill to the plug mill. After the tubes pass out of the plug mill, the receiving table rotates them ninety degrees, and reinserts them into the plug mill, to ensure consistency in the reduced wall thickness.


source: Caselaw Access Project

license: Public Domain

text:
    493 A.2d 1382
    Leslie W. CHANEY, Appellant, v. Karen V. CHANEY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed May 31, 1985.

      Robert J. Stock, Butler, for appellant.
    Leo M. Stepanian, Butler, for appellee.

      Before CIRILLO, HOFFMAN and ROSENWALD , JJ.

       Judge Edward Rosenwald, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   CIRILLO, Judge:

Leslie W. Chaney appeals from the September 4, 1984 order of the Butler County Court of Common Pleas.

The parties were married on September 10, 1960, and separated on July 1, 1979; a divorce decree was granted on November 9, 1982. Appellant is employed by Armco Steel Corporation at an annual net salary of $30,000.00; Armco provides him with life insurance, various medical benefits, a pension plan, and paid holidays. In addition, Armco awarded appellant a $10,000.00 prize for a suggestion appellant made on improving company efficiency; this award was announced before the parties separated, but paid out after-wards.

By contrast, appellee was a homemaker from the birth of the parties’ first child in 1962 until the separation. She is now employed as a practical nurse at a church home, at an annual net salary of $7,000.00; the home provides no fringe benefits. Appellee can work only part-time because of her affliction with multiple sclerosis; it is unlikely that she will be able to find more profitable, full-time employment. She also has custody of the parties’ two minor children; two other children are now adults.

The master awarded alimony of $450.00 per month, and support of $150.00 per month for each of the two minor children. He stated that alimony would terminate upon appellee’s death, remarriage or cohabitation with another man, or be altered upon a showing of changed circumstances, but did not specify that the award would terminate upon appellant’s death. To the contrary, the master directed appellant to designate appellee as the beneficiary of appellant’s group term life insurance policy from Armco, in order to provide some security for appellee in the event that appellant predecease her without her remarriage or cohabitation. The master then stated that this direction was not meant to eliminate the obligation on appellant’s estate to pay alimony to appellee. The master awarded appellee two-thirds of the marital assets, and appellant one-third. He recommended that appellant pay four-fifths of appellee’s counsel fees and two-thirds of the master’s fees. Finally, the master distributed the $10,000.00 Armco prize, without adjustments for income taxes, and required appellant to pay appellee $1,000.00 for repairs to the marital home.

Appellant excepted to the master’s report, challenging, in part, the duration of the alimony award, the disposition of the Armco life insurance policy, the division of the marital property, including the Armco prize, the award of fees, and the $1,000.00 assessment against appellant for home repairs. The court sustained only the exceptions which disputed the distribution of the Armco prize and the home repairs assessment. It eliminated the $1,000.00 payment for home repairs, stating that cancelling this payment would rectify the master’s error in distributing the prize money without having made an adjustment for revenue charges.

Appellant now presents five questions :

1) May a spouse or his estate be required to provide for the payment of alimony after the death of the obligated spouse, where there has been no prior agreement to pay such alimony?
2) May a court order retention of a spouse as the beneficiary of a term life insurance policy furnished by the insured spouse’s employer and over which the insured spouse has no control?
3) Does a court abuse its discretion when it assesses approximately four-fifths of a spouse’s counsel fees against the other spouse, where it also awards the first spouse approximately two-thirds of the marital property?
4) Does a court abuse its discretion when it assesses two-thirds of the master’s fees against a spouse, where it also awards two-thirds of the marital assets to the other spouse?
5) Does a court abuse its discretion or err in law when it assesses $1,000.00 against a spouse for repairs to the marital home, incurred during the time the other spouse resided there after the separation, when during that separation the obligated spouse paid court-ordered support without default?

The court decides matters of alimony, equitable distribution and assessment of fees in its discretion; we do not disturb its decisions on these issues unless it plainly abused that discretion. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985); Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984); Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984); Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1984); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

The general rule is that an alimony obligation ceases with the obligated party’s death, absent a contrary statute or agreement by the parties. See, e.g., Hilton v. McNitt, 49 Cal.2d 79, 315 P.2d 1 (1957); Plant v. Plant, 320 So.2d 455 (Fla.Dist.Ct.App.1975), cert. dis’d, 341 So.2d 292 (Fla.1976); Gordon v. Gordon, 335 So.2d 321 (Fla.Dist.Ct.App.1976); Simpson v. Simpson, 18 Md.App. 626, 308 A.2d 410 (1973); Flicker v. Chenitz, 55 N.J.Super. 273, 150 A.2d 688 (1959); Modell v. Modell, 23 N.J.Super. 60, 92 A.2d 505 (1952); Perry v. Perry, 84 App.Div.2d 612, 444 N.Y.S.2d 490 (1981); Ehrler v. Ehrler, 69 Misc.2d 234, 328 N.Y.S.2d 728 (Sup.Ct. 1972); White v. White, 48 Ohio App.2d 72, 355 N.E.2d 816 (1975). But see Cross v. Cross, 5 Ill.2d 456, 125 N.E.2d 488 (1955) (the court has authority to extend alimony payments past the obliged spouse’s death).

In Pennsylvania, the Divorce Law of 1929 allowed permanent alimony only in the case of an insane spouse; the court could order alimony for the support of such a spouse for the duration of his or her life. 23 P.S. § 45 (repealed). Permanent alimony was thus purely a creature of statute. Hooks v. Hooks, 123 Pa.Super. 507, 187 A. 245 (1936). Alimony pendente lite, under Section 46 of the 1929 Code, was similarly a statutory right, Meinel v. Meinel, 109 Pa.Super. 159, 167 A. 385 (1933), and was awarded in order to enable the dependent spouse to bring or to defend the divorce action, Young v. Young, 274 Pa.Super. 298, 418 A.2d 415 (1980). Alimony was also awarded under Section 47 of the 1929 Code in divorces “from bed and board,” because such divorces were merely judicial separations and did not terminate the obligated spouse’s duty of support. Commissioner v. Rankin, 270 F.2d 160 (3d Cir.1959); Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Super. 591, 326 A.2d 578 (1974).

Except in the case of an insane spouse, the duty of support, hence the court’s power to award alimony, ended under the 1929 Code with the entry of a valid decree of absolute divorce. Rankin, supra; In re Mathay’s Estate, 463 Pa. 486, 345 A.2d 623 (1975); Stambaugh v. Stam-baugh, 458 Pa. 147, 329 A.2d 483 (1974); Commonwealth ex rel. Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974); Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa.Super. 403, 150 A.2d 370 (1959) (allocatur denied). A husband could agree to provide for payments to his former wife to continue past his death, but the law ensured that a former spouse receiving alimony could not normally have a greater right to support from the obligated spouse than if the parties had remained married and the obligated spouse died. Estate of Edwin A. Watrous, 95 Pa.Super. 11 (1928). Compare Commonwealth ex rel. Buehler v. Buehler, 288 Pa. Super. 303, 431 A.2d 1059 (1981) (wife may not use support action to secure a share of her husband’s estate); Commonwealth ex rel. Simpson v. Simpson, 287 Pa.Super. 356, 430 A.2d 323 (1981) (same); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974) (same).

In 1980, the Pennsylvania Legislature enacted our present, reformed Divorce Code. The 1980 Code was intended in part to modernize Pennsylvania’s domestic relations law and to harmonize it with the law of other states. See generally Gold-Bikin and Rounick, “The New Pennsylvania Divorce Code,” 25 Vill.L.Rev. 617 (1980); Comment, “Divorce Reform: Pennsylvania Attempts To Break With the Past,” 18 Duq.L.Rev. 877 (1980). Three of the 1980 Code’s policies, stated in Section 102, are to:

(а) ...
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of marital wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(б) 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.

23 P.S. § 102(a)(3), (4), (6). The 1980 Code thus suggests at the outset that, unlike its predecessor, it will allow alimony even after the termination of the marriage, subject to the terms and limitations of its particular sections.

Alimony is governed by Section 501 of the 1980 Code, which lists the factors the court must consider in fixing alimony. See 23 P.S. § 501(a), (b); Hess v. Hess, supra (reviewing Section 501 and the master’s and court’s duties to apply its criteria). Section 501 also provides:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.
(e) Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.

23 P.S. § 501(c), (e) (emphasis added). Section 502 authorizes awards of alimony pendente lite, upon consideration of all relevant financial factors, Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983), and Section 507 relieves a spouse from any obligation to pay alimony if the recipient spouse “enter[s] into cohabitation with a person of the opposite sex who is not a member of [the recipient’s] immediate family within the degrees of consanguinity subsequent to the divorce.” 23 P.S. § 507.

The 1980 Code mentions the death of a spouse only in Section 701, “Marriage upon false rumor of spouse’s death.” If the first spouse obtains a valid divorce decree or does in fact die, then the other spouse’s new marriage, entered in reliance on the rumor, is valid as of the date of that decree or death. 23 P.S. § 701(d).

Thus, the 1980 Code does not specifically empower the master or the court to award alimony to continue beyond the obligated party’s demise. Rather, the Code states several events which will terminate an alimony obligation: remarriage, cohabitation, and the recipient spouse’s development of an employable skill or commencement of suitable employment. The Code envisions that alimony will be based on the parties’ respective needs and abilities to pay, in order to “effectuate economic justice,” and that it will terminate within a “reasonable” time after the entry of the divorce decree, unless the spouse receiving alimony cannot become self-sufficient. Compare Eck v. Eck, supra (wife’s voluntary decision to care for elderly, disabled mother and not to pursue education or training for employment did not preclude alimony award); D’Arciprete v. D’Arciprete, 323 Pa.Super. 430, 470 A.2d 995 (1984) (in support action, court properly considers any limitations upon petitioner’s earning properly considers any limitations upon petitioner’s earning capacity).

After reviewing the policies and provisions of the 1980 Code, we find that the Code does not authorize the award of alimony to extend past the payor’s death, unless the parties have voluntarily agreed otherwise. See 23 P.S. § 501(f) (court may approve alimony agreement, which then is deemed the order of the court and enforced accordingly).

The trial court therefore abused its discretion by upholding the master’s award to appellee of alimony, to the extent that that award purported to bind appellant’s estate after his death.

Appellant next inquires whether the court could require him to designate appellee as the beneficiary of a term life insurance policy provided by his employer.

The courts are divided on the question of whether a party in a divorce action may be required to name or to maintain his or her spouse as the beneficiary of an insurance policy. Some hold that insurance is in the nature of alimony continuing past the insured’s death, and so cannot be ordered absent statutory authorization. See, e.g., Slaton v. Slaton, 428 So.2d 347 (Fla.Dist.Ct.App.1983); Bildner v. Bildner, 219 So.2d 749 (Fla.Dist.Ct.App.1969); Gordon v. Gordon, 71 App.Div.2d 911, 419 N.Y.S.2d 749 (1979); Enos v. Enos, 41 App.Div.2d 642, 340 N.Y.S.2d 783 (1973). But see Brandenburg v. Brandenburg, 425 So.2d 25 (Fla.Dist.Ct.App. 1982) (error to direct husband to designate wife as beneficiary of policy not in record; husband agreed to make wife irrevocable beneficiary of policy in record). Others allow insurance requirements, under various theories. See, e.g., Re Marriage of Koktavy, 44 Colo.App. 305, 612 P.2d 1161 (1980) (court empowered by statute and power validly exercised given husband’s poor health); Appelman v. Appelman, 87 Ill.App.3d 749, 43 Ill.Dec. 199, 410 N.E.2d 199 (1980) (clause in settlement agreement requiring husband to maintain wife as beneficiary presumably a negotiated term); Arundel v. Arundel, 281 N.W.2d 663 (Minn.1979) (requirement valid if wife unable to support herself); Davis v. Davis, 184 N.J.Super. 430, 446 A.2d 540 (1982) (same); McBean v. McBean, 371 S.W.2d 930 (Tex.Civ.App.1963) (insurance policy refers to a property interest); Williams v. Williams, 44 Wis.2d 651, 171 N.W.2d 902 (1969) (requirement not an abuse of court’s discretion where property division and alimony are sufficient); see also Walzer, “The Disposition of Life Insurance in Divorce Settlements,” 2 Family L.Q. 1 (1968).

Equitable distribution is governed by Chapter 4 of the 1980 Code. See generally Comment, “The Pennsylvania Reformed Divorce Code: Equitable Distribution of Marital Property,” 22 Duq.L.Rev. 151 (1983); Note, “Application of the Equitable Distribution Provisions of Pennsylvania’s 1980 Divorce Code To Marital Property Acquired Both Before and After the Effective Date of Code Held Constitutional,” 56 Temp.L.Q. 855 (1983). Section 401 states, in pertinent part, that “[t]he court may also direct the continued maintenance and beneficiary designation of existing policies insuring the life of either party. The court’s power under this subsection shall extend only to policies originally purchased during the marriage and owned by or within the effective control of either party.” 23 P.S. § 401(i).

In the present case, the master did find, as appellee contends, that appellant acquired “a” life insurance policy during the marriage, and that he cashed in this policy after the separation. However, the record reveals that appellant acquired the disputed Armco group policy on October 7, 1959, the date his employment with Armco commenced; this was before the parties’ 1960 marriage. Therefore, under Section 401(i) the court could not order appellant to designate appellee as the beneficiary of the Armco policy. Compare Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984) (trial court did not abuse its discretion in finding insurance policies not subject to equitable distribution, where policies had small surrender values and had been acquired substantially before the marriage).

Regarding appellant’s third and fourth contentions, appellant does not challenge the amount of the master’s or counsel’s fee, nor the court’s division of the marital property. Appellant questions only the court’s award of those fees in relation to its proportionate division of the marital property.

The courts generally may make fee awards, even prospective awards, under a statute or court rule, in order to enable a party to bring or to defend a divorce action. See Davidson v. Davidson, 5 Cal.App.3d 51, 84 Cal.Rptr. 884 (1970); R. v. R., 310 A.2d 877 (Del.Super.1973); Gary v. Gary, 237 So.2d 575 (Fla.Dist.Ct.App.1970); Bowman v. Bowman, 242 Ga. 259, 248 S.E.2d 654 (1978); Svetich v. Svetich, 425 N.E.2d 191 (Ind.App.1981); Bechtel v. Bechtel, 33 Mich. App. 506, 190 N.W.2d 248 (1971); Kaplan v. Kaplan, 69 Misc.2d 198, 329 N.Y.S.2d 750 (N.Y.Sup.Ct.1972). But see Re Marriage of Justema, 95 Ill.App.3d 483, 51 Ill.Dec. 382, 420 N.E.2d 796 (1981) (statute required that fee already have been incurred before court could make award).

Pennsylvania’s 1929 Code did not specifically prescribe the master’s compensation; instead, the court had reviewable discretion under Section 36 to award an amount for his fee. Merlin v. Merlin, 203 Pa.Super. 16, 198 A.2d 362 (1964). Section 46 allowed awards of counsel fees, to bal-anee as much as possible the parties’ abilities to assert and to defend their rights. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976). Fee awards are now made under Section 502 of the 1980 Code, which permits the court to award “reasonable” amounts for fees and costs in addition to alimony pendente lite. See Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981) (awards are meant to equalize the parties’ economic positions in conducting the action).

In the instant case, appellant works for a large corporation, nets an annual salary of $30,000.00 and receives fringe benefits and paid vacation time. Appellee only recently returned to the work force, after the parties’ 1979 separation; she is employed at a charitable institution, and is compensated solely by a net salary of $7,000.00. In addition, her hopes for more lucrative employment are limited by her impaired health. After reviewing the record in this case, we cannot say that the trial court abused its discretion in its award of the master’s and counsel’s fees, even in light of the equitable distribution of the parties’ marital property. Compare Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127 (1984) (award of $10,000.00 interim counsel fee not an abuse of discretion).

In support of his final claim, appellant argues that the trial court’s modification of the master’s order, by excluding the latter’s $1,000.00 award to appellee for home repairs, was not an adjudication that appellant did not owe appellee this amount, but rather was merely a “credit” to appellant, awarded because the master had not made a tax reduction from the Armco prize. Thus, appellant does not dispute the amount of the adjustment to the prize money, but rather the trial court’s characterization of that adjustment.

This characterization did not do appellant any injustice. Appellant wanted a tax reduction from the prize and the elimination of the repairs assessment. He does not question the value of the reduction; the trial court’s mathematical reasoning underlying its revision of the equitable distribution cannot by itself constitute an abuse of discretion. We therefore may not disturb the trial court’s resolution of this matter. Vajda, Pangallo, Eck, Hess, Kleinfel-ter, Ruth, and Remick, supra. We note, however, that appellant’s claim to relief on this issue based upon his payment of court-ordered support without default is merit-less: a spouse’s or parent’s obligation of support is separate from and independent of the court’s discretion in dividing marital property.

The order of the Court of Common Pleas is reversed insofar as it requires appellant or his estate to provide for alimony payments to appellee after appellant’s death and requires appellant to designate appellee as the beneficiary of his Armco insurance policy; the order is affirmed as to all other matters.

Affirmed in part; reversed in part; remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . In her brief, appellee raises separate, additional claims that the courts must decide all issues under the 1980 Divorce Code, see infra, by the abuse-of-discretion standard and that the hearing court in this case erred in reducing appellant’s pension to its present value. In the hearing court’s Memorandum Opinion and Order, it does not appear that appellee raised these matters as objections to the master’s report nor filed exceptions thereto; these issues are therefore waived. See Levy v. Capital Cities Communications, Inc., 289 Pa.Super. 422, 433 A.2d 522 (1981); Shuda v. Shuda, 283 Pa.Super. 253, 423 A.2d 1242 (1980); Brown v. Brown, 281 Pa.Super. 283, 422 A.2d 170 (1980).

      . Act of May 2, 1929, P.L. 1237, as amended. 23 P.S. §§ 1-69 (repealed 1980) (hereinafter cited and referred to as the "1929 Code”).

      . Act of April 2, 1980, P.L. 63, No. 26, as amended 23 P.S. §§ 101-801 (hereinafter cited and referred to as the "1980 Code”).


author: MONTGOMERY, Judge:

text:
    493 A.2d 1389
    Robert Reid PRICE and Lehman James Snyder, Jr., Appellants, v. James R. MUSSELMAN and Nina M. Musselman, His Wife; Ridgley J. Hughes; Richard W. Harrison and Harriet Harrison, His Wife; Robert J. LaBar and Mabel R. LaBar, His Wife; Ralph E. Fish, Sr. and Josephine E. Fish, His Wife; and John D. Whitesell and Elizabeth M. Whitesell, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 31, 1985.

      James A. Butz, Stroudsburg, for appellants.
    Michael R. Muth, Stroudsburg, for appellees.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   MONTGOMERY, Judge:

The instant appeal is filed by the Plaintiff-Appellants, and it arises from an order by the lower court which granted summary judgment in favor of the Defendant-Appellees. The Appellants instituted an action to quiet title in the lower court, asserting an entitlement to an easement by necessity across properties owned by the Appellees. The lower court’s grant of summary judgment was based upon its conclusion that the Defendant-Appellees were not the proper parties against whom the Appellants should have sought relief. We find merit in the Appellants’ assertion that the lower court erred in reaching that conclusion.

The easement dispute in this case involves a forty-five (45) acre tract of land in Barrett Township, Monroe County, Pennsylvania. The record shows that in 1940, the Delaware, Lackawanna & Western Railroad Company conveyed this forty-five (45) acre tract to Stephen Kronick. The deed covering that conveyance contained the following provision.

It is expressly understood and agreed by the Grantee that no portion of the above described lands and premises abuts upon a public highway and that the Grantor, its successors and assigns, shall not be required to furnish to or obtain for the Grantee, his heirs or assigns, a means of ingress, to, or egress from said lands and premises by a passageway along, across, and or under the adjoining lands of the Grantor, for the purpose of enabling the Grantee, his heirs and assigns, to reach a highway for any purpose whatsoever, and this conveyance is accepted by the Grantee on such express understanding.

Subsequently the entire tract was conveyed to Dr. J.M. DeKay in 1947. Later during the same year, Dr. DeKay and his wife, Della, conveyed a thirty-five (35) acre portion of the property to Inez Schaub. In that transaction, the Dekays did not explicitly reserve or create any right-of-way or easement in favor of Inez Schaub so as to allow her or any subsequent owner of the thirty-five (35) acre parcel to traverse across the remaining ten (10) acres of the original forty-five (45) acre property for egress towards a public road. In 1956, Della W. DeKay conveyed the remaining ten (10) acres to Edward and Elizabeth Harrison. The Harri-sons subdivided the ten (10) acres into separate lots which they conveyed to the Appellees. Appellants own the former Schaub acreage.

The Appellants alleged in their Complaint that they have an interest in the Appellees’ land as they are entitled to a right-of-way by necessity, in order to gain access to a public road. They asserted that a woods road traverses across the Appellees’ lots from Appellants’ own thirty-five (35) acre parcel, and provides access to a public road.

In related proceedings in the lower court, the Appellants had presented a petition for rule to show cause why the Appellees’ properties should not be inspected and appraised. During a conference concerning that petition, the lower court apparently directed the parties to submit briefs concerning whether or not the Appellants’ Complaint in the instant case stated a cause of action. Although the Appellees had already filed an Answer with New Matter, they submitted a “Brief in Support of a Demurrer”. After the Appellants also submitted a legal memorandum, and oral argument was presented by the parties, the lower court issued its opinion and order. While it denominated the order as one granting “Defendants’ Motion for Summary Judgment”, it seems clear that the lower court did not consider any matter except the pleadings, as no affidavits, depositions, answers to interrogatories, admissions, or the like were submitted by the parties. See Pa.R.C.P. 1035, concerning summary judgment. The lower court’s opinion states that the Appellants did not present “evidence” of the existence of the alleged woods road prior to a date in 1974 which the court deemed pertinent in the case. However, the Appellants were not faced with a motion for summary judgment, and it is evident that the lower court’s rationale is based solely upon its review of the pleadings.

We cannot agree with the conclusion that the Appellants could only proceed against the Railroad in this case. The whole forty-five (45) acre plot was apparently land-locked from a public road when the Railroad sold it. While the Appellants’ thirty-five (35) acre parcel may still be separated from a public road by some of the land retained by the Railroad in 1940, it is possible that the Appellants are entitled to an easement by necessity over the Appellees’ ten (10) acres in order to reach the edge of the Railroad’s surrounding land, which must thereafter be traversed to reach the roadway. In other words, the purported woods road may provide the path of ingress and egress required for the access sought by the Appellants, even if the Appellants will thereafter deal with the Railroad’s property rights before legal access all the way to a public road can be established. It is not possible to determine the exact status of the Appellants’ access rights from the pleadings thus far filed by the parties.

The Appellants’ Complaint, after reciting the relevant history of ownership of all of the land in issue, asserts that the woods road is described in the deed of one of the Appellees. Further, it is alleged that the woods road has been used by all parties as access to and from their respective properties, that it is so situated that access to a public road from the Appellants’ property is not available except by the use of it, and that the Appellees have advised the Appellants that the latter would be unable to use it as a means of access. The Appellees, in their Answer and New Matter, did not even admit the existence of a woods road or that it was used for access by any party.

It cannot be said that the Appellants have failed to state a cause of action against the Appellees. It is well-established that when property conveyed is situated in a manner such that access to it from a public road cannot be had except by passing over the remaining land of the grantor, the grantee is entitled to an easement by necessity over the land of the grantor. See Soltis v. Miller, 444 Pa. 357, 282 A.2d 369 (1971), a case involving highly analogous circumstances to those presented in the instant case.

Seeking to convince this Court of the validity of the lower court’s reasoning that the Railroad should have been the defendant in this action, the Appellees cite decisions holding that an easement by necessity can only arise when the lands in question were at some prior time a matter of common ownership. See Wissler v. Hershey, 23 Pa. 333 (1854). What the Appellees do not mention is that their properties and the property of the Appellants were all parts of the forty-five (45) original acres which were subdivided and conveyed to all of the parties, or their predecessors in title, by the DeKays. The Railroad was a distant grantor in the chain of title, before the forty-five (45) acre parcel was subdivided. The mere fact that the Railroad granted no right-of-way over its land outside of the forty-five (45) acre plot has nothing to do with the right of one or more property owners in that later-subdivided property to have a right of way over lots belonging to others, but also within the same large original plot. Again, see Soltis v. Miller, supra.

There are certainly factual as well as legal disputes to be examined and resolved in this case before any party may be awarded a judgment. The lower court erred in granting summary judgment for the Appellees and in dismissing the Appellants’ Complaint.

The Judgment of the lower court is reversed, the Appellants’ Complaint is reinstated, and this case is remanded to the lower court for further proceedings. Jurisdiction is not retained.

      . A demurrer is properly raised in preliminary objections, prior to the filing of an answer by a party. See Pa.R.C.P. 1017(b)(4).

      . Under Pa.R.C.P. 1035(b), summary judgment may only be granted "... if the pleadings and any depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to the material facts and that the moving party is entitled to a judgment as a matter of law.”


author: WIEAND, Judge:

text:
    494 A.2d 1
    Robert E. SLOTA and Deanna L. Slota and Norman J. Shachoy and Maryellen S. Shachoy, Appellants, v. The MOORINGS, LTD., Appellee.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed April 26, 1985.
    Reargument Denied June 28, 1985.

      Robert E. Slota, Bryn Mawr, for appellants.
    Leslie A. Miller, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Robert E. Slota and his wife, Deanna, together with their friends, Norman and Maryellen Shachoy, commenced an action against The Moorings, Ltd. to recover burglary losses sustained while they were guests at a hotel owned by the defendant, from whom they had also chartered a yacht, in St. Lucia, British West Indies. The Slotas are residents of Pennsylvania; and the Shachoys are residents of Massachusetts. The Moorings, Ltd. is a corporation organized under the laws of the British Virgin Islands; it has neither office nor place of business in Pennsylvania. The trial court sustained preliminary objections raising questions of jurisdiction; and the plaintiffs have appealed. We affirm.

Appellants argue first that the trial court acted prematurely and without an adequate record because depositions were not taken and submitted pursuant to Pa.R.C.P. 209. This rule, however, applies to petitions and answers. It does not apply to preliminary objections. A preliminary objection is a pleading, not a petition. Preliminary objection procedure is governed by Pa.R.C.P. 1028, which provides, in subsection (c), that “[t]he court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.”

In the past, both the Supreme Court and this Court have said that where facts are controverted, the trial court must “resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing.” Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., 309 Pa.Super. 158, 161, 454 A.2d 1131, 1133 (1983), quoting Luitweiler v. Northchester Corp., 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). In the instant case, the evidence was submitted via affidavit. This is not a recommended procedure. It would have been preferable to proceed by depositions or written interrogatories. However, the facts attested to in the affidavit are clear and specific. The deposition of Robert Slota, on the other hand, discloses that the information to which he testified was nothing more than rumor, surmise and conjecture. He made no effort to substantiate any of his assertions with depositions, interrogatories, affidavits or documentary evidence. We conclude, therefore, that the trial court did not err in finding that the facts were as set forth in appellee’s affidavits and that appellants had failed to show facts sufficient to allow the courts of Pennsylvania to exercise in personam jurisdiction in the Pennsylvania courts. There is no need to remand for the taking of depositions or the filing of interrogatories. See: Buxbaum v. Peguero, 335 Pa.Super. 289, 294-295, 484 A.2d 137, 140-141 (1984); Bensalem Township v. Terry, 317 Pa.Super. 380, 464 A.2d 371 (1983). See also and compare: Szekely v. Abilene Flour Mills Co., 211 Pa.Super. 442, 237 A.2d 242 (1967) (where disputed facts not resolved by affidavits, case will be remanded “to present evidence by deposition, interrogatories, or otherwise”). Nor was it essential in this case that appellee’s personnel come into Pennsylvania for an evidentiary hearing.

Appellants ask this Court to find jurisdiction in the courts of Pennsylvania (1) because the contract for lodging was entered and partially performed in Pennsylvania; and (2) because, in any event, The Moorings allegedly conducted business continuously and systematically in Pennsylvania. There is no merit in either , contention.

Jurisdiction of the Pennsylvania courts may be exercised with respect to all persons, including corporations, “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S. § 5322(b). A state may exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981). The due process clause “does not contemplate that a state may make a binding judgment in personam against an individual or corporate defendant with which the state has no contacts, ties or relations.” International Shoe Co. v. Washington, supra, 326 U.S. at 319, 66 S.Ct. at 160, 90 L.Ed. at 104. “[Maintenance of suit against a non-resident defendant must not offend traditional notions of ‘fair play and substantial justice.’ ” Kenny v. Alexson Equipment Co., supra, 495 Pa. at 118, 432 A.2d at 980.

In Pennsylvania, jurisdiction over a nonresident may be constitutionally exercised if one of two tests is met. Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 293, 464 A.2d 323, 328 (1983) (allocatur denied December 27, 1983), cert. denied, — U.S. —, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 357, 455 A.2d 646, 649 (1982). The first test for exercising jurisdiction has been stated as follows:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)]. Secondly, the cause of action must arise from defendant’s activities within the forum state. Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)].

Koenig v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, 284 Pa.Super. 558, 568, 426 A.2d 635, 640 (1980) (citations omitted), quoting Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974). See also: Hart v. McCollum, 249 Pa.Super. 267, 273, 376 A.2d 644, 647 (1977). If it appears that jurisdiction does not exist by application of this test, then jurisdiction can be exercised only if the nonresident defendant’s activities in Pennsylvania, though unrelated to the cause of action, are “continuous and substantial.” Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974). If defendant’s activities in Pennsylvania are of the latter type, then personal jurisdiction of the defendant exists for all purposes. Union National Bank v. L.D. Pankey Institute, 284 Pa.Super. 537, 542, 426 A.2d 624, 627 (1980); 42 Pa.C.S. § 5301.

Appellants argue first that the courts of Pennsylvania can exercise in personam jurisdiction over The Moorings by virture of the standard defined in Koenig and Proctor & Schwartz. They argue that The Moorings entered into a contract with appellants which was formed in Pennsylvania by Slota’s signature and that it was “substantially performed” by appellants in Pennsylvania when they issued and sent to The Moorings a check drawn on a Pennsylvania bank. These facts, however, are woefully inadequate to support the exercise of in personam jurisdiction under the three-part test recited in Koenig and Proctor & Schwartz.

In order that a nonresident defendant have “purposely availed itself of the privilege of acting within [Pennsylvania],” it must appear, first, that the performance of the contract will have significant effects in the forum state. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 569, 426 A.2d at 640. Obligations entered into by foreign corporations must have “a realistic economic impact on the commerce of this Commonwealth” such that “the defendant should reasonably have foreseen that the transaction would have consequences in this Commonwealth.” In the absence thereof, a foreign corporation cannot be said to have “purposely availed itself of the privilege of acting within the Commonwealth----” Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra, 228 Pa.Super. at 19-20, 323 A.2d at 15. “[I]t is the defendant’s contacts with the forum state that confer jurisdiction over him, and not ‘the mere “unilateral activity of those who claim some relationship with [him].” ’ ” Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 571, 426 A.2d at 641 (emphasis in original), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 502 (1980). See also: United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 657, 462 A.2d 1300, 1305 (1983).

Appellants’ action is based upon what is alleged to be an implied condition in an “innkeeper’s contract” to provide adequate security. Whether such an agreement arose in Pennsylvania, where appellants unilaterally made reservations and drew a check to pay appellee therefor, is doubtful. The duty to provide secure accommodations, in any event, could be performed only upon appellants’ arrival in St. Lucia. By accepting reservations from Pennsylvania residents and receiving pre-payment of rent from them, appel-lee did not produce “significant effects” or “a realistic economic impact” in Pennsylvania such that it can be said to have purposely availed itself of the privilege of acting within this Commonwealth. See: Kenny v. Alexson Equipment Co., supra, 495 Pa. at 125, 432 A.2d at 983-984. There was here nothing more than unilateral activity by appellants.

It is also evident that appellants’ cause of action did not arise from appellee’s activities in Pennsylvania.

The purpose of the second prong, as it relates to substantive relevance, is to insure that the acts of the nonresident defendant within the forum state represent the factual predicates upon which a cause of action are to be based. Without this requirement, the nexus between the defendant’s activities, the cause of action and the forum state have [sic] not been established. Such a causal connection is critical to the assertion of long-arm jurisdiction.

Kingsley and Keith (Canada) Limited v. Mercer International Corp., 500 Pa. 371, 380-381, 456 A.2d 1333, 1338 (Opinion in Support of Reversal), cert. denied, 464 U.S. 982, 104 S.Ct. 423, 78 L.Ed.2d 358 (1983). It is obvious that the factual predicate upon which the instant cause of action is based existed exclusively in St. Lucia. The purpose of the second prong, therefore, is not served.

Finally, it is clear that it would not be “fair and reasonable under the circumstances” of this case to exercise jurisdiction.

[T]he determination of whether an exercise of jurisdiction is reasonable depends on the burden that would be imposed on the defendant, in light of several factors, including the forum state’s interest in resolving the dispute; the plaintiffs interest in obtaining convenient and effective relief; the interstate judicial system’s interest in the most efficient resolution of the controversy and the interest of the several states in furthering substantive social policies.

Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 196, 479 A.2d 500, 506 (1984), quoting Kingsley and Keith (Canada) Limited v. Mercer International Corp., 291 Pa. Super. 96, 109, 435 A.2d 585, 591 (1981), aff'd by an equally divided court, 500 Pa. 371, 456 A.2d 1338, cert. denied, 464 U.S. 982, 104 S.Ct. 423, 78 L.Ed.2d 358 (1983). See also: World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498; Nissley v. JLG Industries, Inc., 306 Pa.Super. 557, 566, 452 A.2d 865, 869 (1982). The burden that would be placed on The Moorings by forcing them to litigate in Pennsylvania is obvious and heavy. Appellee has offices and employees in the United States only in New Orleans. Its principal places of business are in the British Virgin Islands and in the Windward Islands. All the relevant facts and circumstances of appellants’ cause of action are located in St. Lucia. Pennsylvania’s interest in resolving this dispute is extremely limited. No Pennsylvania laws have been violated; no duties have been breached in Pennsylvania; and Pennsylvania residents have not been harmed in any way by activities in or contacts made within Pennsylvania by The Moorings. Indeed, only two of the four plaintiffs in this case are Pennsylvania citizens; the Shachoys are residents of Massachusetts. Although appellants, particularly the Slotas, could, from their viewpoint, obtain “convenient” relief in Pennsylvania, their interest in litigating here is far outweighed by the inconvenience to appellee and the lack of contact by the courts of this Commonwealth with the cause of action which appellants seek to enforce. It is apparent, therefore, that appellants can satisfy none of the three requirements set out in Koenig and in Proctor & Schwartz. This Commonwealth cannot exercise jurisdiction over The Moorings unless its other activities in Pennsylvania “may fairly be characterized as ‘continuous and substantial.’ ” Union National Bank v. L.D. Pankey Institute, supra, 284 Pa.Super. at 542, 426 A.2d at 627. See also: Bork v. Mills, supra; Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Super. 544, 556, 426 A.2d 628, 634 (1980).

“Where the plaintiff’s cause of action does not arise from the defendant foreign corporation’s business activities in this state, Pennsylvania courts may exercise in personam jurisdiction over the defendant only if the defendant’s business activities are ‘so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.’ ” Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 251, 418 A.2d 389, 391 (1980), quoting Bork v. Mills, supra, 458 Pa. at 231-232, 329 A.2d at 249. See also: Lebkuecher v. Loquasto, 255 Pa.Super. 608, 611, 389 A.2d 143, 145 (1978).

A comparison of two prior decisions of this Court will serve to approximate the quantity and quality of advertising and solicitation which will make it reasonable for the courts of this Commonwealth to exercise jurisdiction over a defendant. In Whalen v. Walt Disney World Co., supra, the defendant, a Florida amusement park, engaged “in widespread advertising, solicitation, negotiations, acceptance of reservations, and other activities in Pennsylvania.” Id., 274 Pa.Super. at 248, 418 A.2d at 390. However, the defendant had no listed phone number in any Pennsylvania telephone directory and paid no commissions to any travel agent or other person in Pennsylvania. It had, on the other hand, purchased merchandise from a Pennsylvania corporation and a policy of insurance from a Pennsylvania-based underwriter. This Court held that the plaintiffs, who bore the burden of proof, had failed to establish with these facts activities which could be characterized as continuous and substantial.

Distinguished in Whalen was the case of Garfield v. Homowack Lodge, Inc., 249 Pa.Super. 392, 378 A.2d 351 (1977), where this Court had been persuaded that jurisdiction could be obtained because of the “intensity” of the defendant’s solicitation methods in Pennsylvania. The defendant in Garfield had for five years advertised its New York resort weekly in a newspaper published and distributed in the Philadelphia area, had maintained a tollfree telephone number in Pennsylvania for Philadelphia for area residents to use in making reservations, and had made arrangements with Pennsylvania travel agents to pay a ten percent commission for referrals. “[T]his intensive level of activity by appellant in Pennsylvania,” held the Court, “provides a substantial enough connection with the Commonwealth to make the exercise of jurisdiction over appellant fair and reasonable under the circumstances.” Id. at 397, 378 A.2d at 354.

Later, in Union National Bank v. L.D. Pankey Institute, supra, the Court made clear that jurisdiction arising out of a defendant’s advertising and/or solicitation could be based only on the extent and intensity of the solicitation, i.e., the activities pursued by the defendant, and not “because a given number of Pennsylvania residents had responded to defendant’s advertisements.” Id., 284 Pa.Super. at 543, 426 A.2d at 627.

In the case sub judice, The Moorings does not employ any agents who reside or perform services in Pennsylvania. It does not have a telephone listing in Pennsylvania, and there is no toll-free number which Pennsylvania residents exclusively can use to reserve accommodations. Appellee has never purchased radio or television time in Pennsylvania, has not conducted a direct mail solicitation of Pennsylvania residents and has not advertised in any publication intended for exclusive distribution in Pennsylvania. Its printed, promotional efforts are not directed to Pennsylvania but appear only in national publications such as Yachting Magazine, Sail Magazine and Cruising World. It has only one office or place of business in the continental United States, that being in New Orleans, Louisiana. It is neither registered nor licensed to do business in Pennsylvania and has no post office box in this Commonwealth. It has never maintained a bank account in Pennsylvania and has never been assessed by or paid taxes to Pennsylvania or any municipality therein. Finally, appellee has never entered into a contract requiring total or partial performance on its part in Pennsylvania.

Under these circumstances, we find ourselves in agreement with the trial court which concluded that The Moorings’ contacts with this Commonwealth were inadequate to subject it to the jurisdiction of the Pennsylvania courts. Appellee did not become subject to jurisdiction merely because, as appellants contended but appellee denied, The Moorings had conducted occasional mailings to subscribers of national boating magazines, some of which reached the homes of Pennsylvania residents. Such contacts, even if they existed, would be too few, too sporadic and too tenuous to be considered “substantial and continuous.”

The Pennsylvania courts, therefore, cannot properly exercise jurisdiction over appellee in the instant case. An attempt to exercise jurisdiction would be inconsistent with due process and the Pennsylvania long-arm statute. The trial court correctly sustained appellee’s preliminary objections raising questions of jurisdiction.

Affirmed.

      . Pa.R.C.P. 209 provides in part as follows:
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule ... to show cause why he should not proceed____


author: OLSZEWSKI, Judge:

text:
    494 A.2d 7
    COMMONWEALTH of Pennsylvania, Appellant, v. William WU.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed May 31, 1985.

      Stuart M. Niemtzow, Deputy Attorney General, Norris-town, for Commonwealth, appellant.
    Gilbert B. Abramson, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

When incriminating testimonial information has been lawfully obtained in the course of a good faith civil investigation, may a defendant assert a fifth amendment privilege against its use in a subsequent criminal prosecution?

Appellee, the defendant below, is a dentist. As a dental health care provider, he received reimbursement for his services through the Medicaid Program of the Départment of Public Welfare.

The Bureau of Utilization Review, an agency with the DPW, serves as that department’s investigative arm. It inspects providers’ bills and records to determine whether the providers are adhering to dental practice standards and the bills accurately reflect the services rendered. To that end, the Bureau may review providers’ records, interview their patients and issue reports on its investigations. The Bureau can terminate a provider. It cannot, however, institute criminal proceedings. The Bureau must refer the matter for criminal prosecution to the Medicaid Fraud Control Unit of the State Department of Justice.

The Bureau contacted appellee after a computer print-out flagged him as a “high volume biller.” Upon investigation, the Bureau discovered a high number of questionable services performed by appellee. Subsequent in-mouth examinations of the patients revealed discrepancies between the services billed and those actually provided. During a visit to appellee’s office, November 12, 1981, a Bureau investigator procured patient files. On February 8, 1982, a Director of the Bureau referred the case to the Medicaid Fraud Control Unit of the Attorney General’s Office.

Appellee was arrested February 10, 1983 and charged with Medicaid Fraud. 62 P.S. Sec. 1047. Following a preliminary hearing, he was held for court on 29 counts of Medicaid Fraud. The gravamen of these charges is that appellee knowingly submitted fake invoices to the Pennsylvania Medical Assistance Program with the intent to obtain greater remuneration than that he was due. Commonwealth’s case rested on a statement made by appellee to Bureau personnel during the November 12, 1981 office visit. At that time, appellee acknowledged preparing or reviewing all billings generated from his dental office. Additionally, on November 17, 1981, appellee wrote a letter which accompanied and explained certain records he was supplying to the Bureau investigator.

Appellee filed timely pre-trial motions seeking, inter alia, to suppress dental records and statements obtained from him by Bureau personnel. Following an evidentiary hearing on the motions, the Honorable Jacob Kalish issued an opinion and order suppressing use of both the November 12, 1981 statement and the November 17, 1981 letter. From this order, Commonwealth appeals.

Commonwealth argues that the lower court incorrectly suppressed a statement obtained in the course of a “good faith” investigation by a strictly civil state agency. The lower court, relying on Interstate Commerce Commission v. Gould, 629 F.2d 847 (3rd. Cir.1980), had reasoned that “securing the defendant’s statements is analogous, for 5th Amendment purposes, to the service upon him of a subpoena with its attendant rights. Obviously, the statements could not be obtained without the complete aid or assistance of the defendant.” Equating use of appellee’s statement with compulsion of his testimony, the lower court suppressed use of appellee’s statement.

Commonwealth distinguishes Gould on its facts. That case involved an assertion of Fifth Amendment rights against a civil agency’s attempts to compel production of documents. The overt coercion there, injunctive relief to enforce its discovery powers, is conspicuously lacking here. Indeed the argument in the instant case seems to be that the Commonwealth, under the guise of a “good faith” civil investigation, procured incriminating statements from the hapless doctor. So viewed, appellee’s failure to assert his rights is understandable. The question then becomes, on the facts of this case, was appellee entitled to be apprised of his rights. Under current case law, it would appear not.

Appellee contends that Miranda warnings were due because he was questioned “while the object of an investigation of which he (was) the focus.” That argument has been dismantled by our appellate courts. The need for Miranda warnings arises only when a person faces “custodial interrogation.”

In Pennsylvania “custodial interrogation” has been interpreted to mean either questioning “while in custody or while the object of an investigation of which he is the focus.” Subsequent to these Pennsylvania cases, the U.S. Supreme Court in Beckwith v. U.S., 425 U.S. 341 [96 S.Ct. 1612, 48 L.Ed.2d 1] (1976) explained that the Miranda court specifically defined ‘focus’ for its purposes, as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his action in any significant way.”

Commonwealth v. Markman, 320 Pa.Super. 304, 318 n. 8, 467 A.2d 336, 343 n. 8 (1983) (citations omitted, emphasis deleted). None of the Miranda criteria apply here. Appel-lee was questioned in his office by an employee of a civil agency. As a condition of his participation in the medical assistance program, appellee was required to make his records available for inspection, review and copying by office personnel. 62 P.S. Sec. 1402(b). At the time of that office visit no criminal prosecution was pending. The investigator had no duty to read appellee the Miranda warnings. See Commonwealth v. Anderson, 253 Pa.Super. 334, 341, 385 A.2d 365, 368 (1978) (the relevant “compulsion” stems from custody, not from the suspect’s perceived need to attend the interview).

Accordingly, we vacate the order of the suppression court and remand the matter for trial.

Jurisdiction is relinquished.

DEL SOLE, J., concurs in the result.

      . The term "high volume biller” is not defined by regulation. As the Bureau investigator explained, "The only relevant thing is by reviewing him in comparison to other dentists in the area.”

      . Commonwealth avers that the suppression order “substantially handicaps” the prosecution of appellee. The appeal, therefore, is properly before us. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (Commonwealth has an absolute right of appeal to the superior court to test the validity of a pretrial suppression order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.
      The lower court in its opinion did not address the November 17, 1981 letter. The logic of his decision to suppress appellee’s statements would impel suppression of the letter. We note that the parties assume the letter was suppressed. The point, however is mooted by our decision today.

      . “Good faith” goes to the existence of a legitimate civil purpose for the investigation. See United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). Appellee would have the burden of disproving the actual existence of a valid civil purpose, here the identification and termination of erring health care providers. See United States v. LaSalle National Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 2367, 57 L.Ed.2d 221 (1978).
      Testimony of the suppression hearing established a high degree of correlation between the Bureau and the Medicaid Fraud Unit of the Attorney General's Office. The Bureau investigator testified that: "If we see problems with the billings and we think that there may be a possibility of fraud, we refer those cases to the Medicaid Fraud Control Unit;" "We also routinely check Medicaid Fraud (to see) if they have an active case on the provider before we initiate a review of the process;” “If we find a violation of the standards of practice or a violation of record keeping requirement, if there is a substantive number or a substantive nature, we can terminate the provider from the program. If we find billing discrepancies, and if we see a pattern at the end of the review, if the pattern emerges where we feel that there are more cases than might be found by error alone, then we refer those to the Medicaid Fraud Unit to determine if fraud was involved;" “We do (turn the matter over to the Fraud Control Unit), if we have a pattern of many kinds of things that indicates that these discrepancies were limited to extractions and crowns built up.”


text:
    494 A.2d 381
    AETNA CASUALTY AND SURETY COMPANY, Appellee v. Alice DRAKE and Faye L. Reiner Motts. Appeal of Alice DRAKE.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed April 12, 1985.
    Reargument Denied June 19, 1985.

      Mark S. Love, Stroudsburg, for appellant.
    Thomas J. Nolan, Scranton, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Jeffrey Melmed commenced an action to recover damages caused by a collision between the motorcycle on which he was riding and a vehicle owned and operated by Faye L. Reiner Motts. See: Melmed v. Motts, 341 Pa.Super. 427, 491 A.2d 892 (1985). Alice Drake, who was named as a defendant in that action, had been a passenger in the Motts vehicle. Drake was a 71 year old widow; and Motts, according to the averments of the complaint, had been “employed” as Drake’s “private duty nurse.” At the time of the accident, Drake owned no motor vehicles and had no motor vehicle insurance. She was the named insured, however, in a homeowner’s policy issued by Aetna Casualty and Surety Company (Aetna). She made a demand upon Aetna to provide her with a defense in the Melmed action. Aetna denied coverage. Instead, it filed a petition for declaratory judgment seeking a determination that it had no duty to defend the claim made against its insured. The case was submitted to the court on depositions, and the court entered a declaratory judgment in favor of Aetna, holding that, pursuant to the terms of the homeowner’s policy, Aetna had no duty to defend any action against its insured arising out of a motor vehicle accident. Alice Drake appealed. We reverse.

It is axiomatic that if it be determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible of more than one construction, the language must be construed most strongly against the insurer, and the construction most favorable to the insured must be adopted. Cohen v. Erie Indemnity Co., 288 Pa.Super. 445, 448, 432 A.2d 596, 597 (1981). The Aetna policy in this case, however, is not ambiguous. With respect to the appellant, Alice Drake, the duty to defend is clear.

The policy which Aetna issued to Drake contains the following coverage:

Coverage E If a claim is made or a suit is brought against any Personal insured for damages because of bodily injury or prop-Liability erty damage to which this coverage applies, we will a. pay up to our limit of liability for the damages for which the insured is legally liable, and b. provide a defense at our expense by counsel of our choice. . . .

Alice Drake was the named insured. The term “insured” was defined to include “you [the named insured] and ... with respect to any vehicle to which this policy applies, any person while engaged in your employment____” (emphasis added). The policy issued by Aetna, however, did not apply to any vehicle. Alice Drake owned no vehicle, and the policy did not purport to provide coverage for a vehicle owned by any other person. It was Mrs. Drake who was the insured for purposes of applying the provisions of Coverage E. The coverage simply did not apply to a vehicle. Whether Fay Motts was in the employ of Mrs. Drake, therefore, was not controlling.

The liability coverage provided by the policy was broad. It applied to any claim made or suit brought against Alice Drake for damages because of bodily injury or property damage, unless coverage was specifically excluded. According to the exclusions of the policy, Coverage E did “not apply to bodily injury or property damage ... arising out of the ownership, maintenance, use, loading or unloading of ... a motor vehicle owned or operated by or rented or loaned to any insured____” The averments of the complaint filed by Jeffrey Melmed against Faye Motts and Alice Drake were that Faye Motts, not the insured, Mrs. Drake, had been the owner and operator of the vehicle which collided with Melmed. Fay Motts, as we have observed, was not an insured under Aetna’s policy. The policy did not apply to or provide coverage for the vehicle which Faye Motts owned and operated at the time of the collision. Alice Drake was the only person insured under the policy issued by Aetna, and, in the absence of a specific exclusion, was entitled to be defended by Aetna in any action brought against her to recover “damages because of bodily injury or property damage.”

Aetna contends that coverage is excluded because Melmed’s action arose out of Drake’s “use” of a motor vehicle. Closer examination, however, discloses that this exclusion has no application to Drake under the circumstances of this case. Even if we assume that Alice Drake, who had been taken to dinner by her nurse in the latter’s car, was “using” a motor vehicle when the nurse-owner turned into a service station to put gasoline in the tank, it is clear that the exclusion is not applicable to Alice Drake. It has no application because the vehicle was not “owned or operated by or rented or loaned to” Alice Drake, the insured. Ms. Motts at all times retained possession of her vehicle and operated it; she cannot reasonably be said to have “rented or loaned” her vehicle to Mrs. Drake merely because she used her car to take Mrs. Drake to dinner.

We conclude, therefore, that the trial court erred when it entered a declaratory judgment holding that Aetna owed no duty to provide a defense for Drake. Drake had been sued because of circumstances which had not arisen out of the ownership or use of a motor vehicle owned or operated by, or rented or loaned to her. According to the terms of its policy, therefore, Aetna owed Alice Drake a duty to provide her with a defense.

The declaratory judgment is reversed.

POPOVICH, J., dissents.

      . Faye L. Reiner Motts, the alleged owner and operator of the vehicle, may have been insured under a separate motor vehicle policy. She believed that she had been insured but was not entirely certain at the time when her depositions were taken. Whether such insurance, if it existed, also provided coverage for Alice Drake we need not now decide.

      . The trial court found that Aetna was not required to defend the claim against Faye Motts, and she has not appealed from that determination.