text:
    577 A.2d 636
    Robert S. DAVIS v. The WOXALL HOTEL, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 13, 1990.
    Filed July 10, 1990.

      Roger B. Reynolds, Norristown, for appellant.
    John A. Greenhall, Philadelphia, for appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The primary issue in this case is whether Pa.R.Civ.P. 2952(f) requires a plaintiff, when confessing judgment against a defendant under the terms of a commercial agreement for less than the full amount provided for under the agreement, to itemize the principal amount alleged due in the complaint to show how the judgment was computed.

This is an appeal from an order denying appellant’s two petitions, one to open and the other, separately filed, to strike a judgment by confession entered pursuant to a commercial lease. Appellant The Woxall Hotel, Inc. (“Woxall”), operates a hotel on property owned by appellee Robert S. Davis (“Davis”). The parties entered into a lease agreement for a term of 75 months beginning December 1, 1983, for a rental of $53,953.78, to be paid in 74 monthly installments of $568.75, the balance to be paid in the 75th month. The lease agreement contains two provisions permitting the lessor, Davis, to confess judgment against the lessee, Woxall, for payment of money in the event that the rent remains unpaid five days after it is due, and for possession of the property in the event of a breach of a condition of the lease. In November of 1988, Davis filed a Complaint for Confession of Judgment pursuant to Pa.R. Civ.P. 2951(b), and judgment was confessed against Woxall in ejectment and for payment of money in the amount of $35,152.72. Appellant filed separate petitions to open and to strike the judgment which the trial judge denied after a hearing. Woxall filed a timely notice of appeal.

We first consider the issue Woxall raised in its petition to strike the judgment, whether the record in this case is defective due to an inadequate itemization of the amount due in the complaint under Pa.R.Civ.P. 2952(f). We note preliminarily that a confessed judgment is properly stricken only when there is a defect in the judgment apparent on the face of the record. Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 7-9, 459 A.2d 720, 724 (1983); Reichert v. TRW, Inc., 385 Pa.Super. 416, 422-24, 561 A.2d 745, 748 (1989). Our concern therefore, is whether the record as filed by Davis is adequate to sustain the judgment, or is defective in some way. Par liament Industries, 501 Pa. at 7-9, 459 A.2d at 724; Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819, 821 (1972).

Rule 2952(f) provides that a complaint for confession of judgment shall contain “an itemized computation of the amount then due, based on matters outside the instrument if necessary, which may include interest and attorney’s fees authorized by the instrumenté]” Woxall argues that because it is unclear on what basis judgment was confessed, Davis was required to make an accounting in the complaint of precisely which months unpaid rent are represented in the judgment.

The Complaint for Confession of Judgment in the instant case itemizes the judgment as follows:

Principal amount due $33,478.78
Collection fees (5%) $ 1,673.94
Total $35,152.72

Woxall’s position is that the principal amount should have been further itemized to show how the judgment was computed. We disagree, and hold that the itemization contemplated by Rule 2952(f) permits the listing of the principle amount due under a commercial lease agreement in one lump sum. See Courshon v. United States Heritage, Inc., 71 D. & C.2d 38 (Adams Co.1975); see also 11 Standard Pa.Practice 2d § 67:63.

We construe Rule 2952(f) in this manner for the following reasons. When a complaint for confession of judgment is filed pursuant to Rule 2951(b), the plaintiff need only aver a default and allege the amounts due. Van Arkel & Moss Properties v. Kendor, Ltd., 276 Pa.Super. 547, 550-52, 419 A.2d 593, 595 (1980). Unless it is evident from the face of the instrument that the judgment is grossly excessive, or includes recovery for items not authorized by the instrument, a challenge to the accuracy of such amounts should be resolved by a petition to open the judgment. Id.; J.F. Realty Co. v. Yerkes, 263 Pa.Super. 436, 439-41, 398 A.2d 215, 217-18 (1979). The procedures by which a party can contest the factual averments in the complaint are provided for in the Rules of Civil Procedure. Pa.R.Civ.P. 2959. The party against whom judgment is confessed has the burden of disproving the averments it challenges. Haggerty v. Fetner, 332 Pa.Super. 333, 338-39, 481 A.2d 641, 644 (1984); Owens v. McCurdy, 304 Pa.Super. 510, 512-13, 450 A.2d 1028, 1030 (1982). On this basis we conclude that Rule 2952(f) does not require the party seeking confession of judgment pursuant to the terms of a commercial lease to itemize the monthly rentals represented in the judgment. To hold otherwise would serve to shift the burden to the plaintiff, and this we decline to do.

Since appellant failed to disclose a defect in the judgment that is apparent on the face of the record, the trial judge properly denied the petition to strike the judgment.

Woxall raises two other issues on this appeal. It next argues that the judgment should have been stricken because the complaint admits that Davis accelerated rental payments on an improper basis. This issue has not been preserved for appellate review.

After entry of judgment by confession, appellant filed, a “Petition to Strike Judgments.” The only issue raised in this petition alleges error due to the lack of an itemized computation of amounts due. Three weeks later, appellant filed a “Petition to Open Judgments,” which contains twenty-two paragraphs, but does not articulate any specific defenses. Defenses to a confessed judgment that are not contained in the petition to open or strike the judgment are waived. Pa.R.Civ.P. 2959(c); Duque v. D’Angelis, 390 Pa.Super. 136, 139, 568 A.2d 231, 233 (1990); Mellon Bank v. Rafsky, 369 Pa.Super. 585, 593-96, 535 A.2d 1090, 1094 (1987), appeal granted, 518 Pa. 650, 544 A.2d 961 (1988). Since this issue was not raised in either the petition to strike or the petition to open, we find that it has been waived.

Woxall finally contends that entry of judgment by confession in this case was premature because the trial judge denied the petitions to open and strike before either party took action under Pa.R.Civ.P. 209. We disagree.

Rule 209 sets forth the duty of a petitioner to proceed after an answer is filed. It provides:

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 as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may 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.

On its face, Rule 209 does not apply when, as in this case, the court lists the case for argument. Arthurs Travel Center, Inc. v. Alten, 268 Pa.Super. 330, 333-35, 408 A.2d 490, 492 (1979). The “spirit” of the rule does apply, however, and when a petitioner has had ample opportunity to take depositions, but neglects to do so, a ruling on a petition to open or strike a confessed judgment is not premature, as it is proper for the trial judge at that point to treat as admitted all averments of fact in the responsive pleadings. Id.

In the instant case, Woxall filed the petitions to strike and open, to which Davis filed responsive pleadings. Two orders were issued by the court, one on January 4, 1989, and one on January 24, 1989, both titled “Order Sur Petition To Strike,” which clearly state that discovery in this case “shall be completed within 60 days of the date of this order.” Woxall took no depositions in response to these orders. Thereafter, the trial judge considered all Davis’ averments of fact responsive to Woxall’s petitions as true. Oral argument was heard on this matter on July 26, 1989, and the trial judge issued the order denying the petitions to strike and open the judgment on August 3, 1989. It is clear from these facts that Woxall had ample opportunity to schedule depositions but neglected to do so. We therefore conclude that denial of the petitions to open and strike was not premature. Compare, Owens, 304 Pa.Super. at 512-13, 450 A.2d at 1030 (ruling on petition to open on basis of pleadings held premature absent court order to proceed with discovery and absent any action by the parties pursuant to Rule 209).

Woxall makes one final argument in its defense. It contends that an order to complete discovery does not satisfy Rule 209 because the rule expressly provides that parties must “take depositions on disputed issues of fact.” (Emphasis added). Woxall argues that “depositions” do not fall within the meaning of “discovery,” and denial of its petition absent an express order to take depositions was premature. This argument is frivolous. Discovery includes the taking of depositions. Pa.R.Civ.P. 4001.

The order denying petitions to open and strike is affirmed.

      . Pa.R.Civ.P. 2951 METHODS OF PROCEEDING
      (b) If judgment by confession is authorized by the instrument but may not be entered by the prothonotary under subdivision (a), an action shall be commenced by filing a complaint substantially in the form provided by Rule 2952____

      . The procedure appellant followed itself constitutes error. The rules provide that when seeking relief from a confessed judgment, ‘‘[ajll grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition____” Pa.R.Civ.P. 2959 (emphasis added). Appellant filed two petitions, one to strike and one to open judgment.

      . Appellant raised this issue in a statement of matters complained of on appeal, filed pursuant to a request by the trial court under Pa.R.A.P. 1925(b), but failed to raise it in the petition to open or in the petition to strike. A party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order. Commercial Credit Corp. v. Cacciatore, 343 Pa.Super. 430, 434-35, 495 A.2d 540, 543 (1985). Appellant also raised this issue in a "Brief on Petition to Open Judgment.” This document is contained in the reproduced record, (compiled by the parties and entitled “Supplemental Record”) but it is not contained in the certified record on appeal, nor does the docketing statement reflect that it was ever filed with the court below. Therefore, we cannot consider it.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    577 A.2d 640
    Eugene BLAISURE, Appellant, v. Nancy BLAISURE, Appellee. Nancy BLAISURE, Appellee, v. Eugene BLAISURE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1990.
    Filed July 11, 1990.

      Gregory H. Chelak, Chambersburg, for appellant.
    David A. Serclak, Tunkhannock, for appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this appeal we are called upon to decide whether the trial court erred in its determination of the amount of child support to be paid by parents, each of whom have one child in their care. For the reasons which follow, we vacate the order and remand the case for action in keeping with the laws of this Commonwealth.

The facts in this case are simple but the procedural history is not. Eugene Blaisure and Nancy Blaisure married in 1971 and separated in March 1987. The record before us does not indicate whether the divorce action, filed in Lackawanna County, has yet been finalized. There were two children born of the marriage, Jason (D.O.B. 1/31/72) and Rebecca (D.O.B. 3/31/75). Since the separation Jason has resided with Eugene, and Rebecca with Nancy and a man with whom Nancy shares living expenses. Initially, only Eugene was under an order of support for Rebecca, effective October 13, 1987 in the amount of $40 per week plus a retroactive arrearage which brought the payment to $50 per week. Eugene subsequently petitioned for support for Jason, and an order was entered against Nancy on July 17,1989 ordering payment effective January 15,1988, in the amount of $65 per week plus a $5 arrearage.

Nancy never paid the ordered support, but petitioned for consolidation of both support cases pursuant to 23 Pa.C.S.A. 4349,«and for a de novo hearing under R.Civ.Pro. 1910.11(f). The court ordered the consolidation and hearing.

In the interim, Eugene became unemployed thus presenting changed circumstances and reduction in his present ability to pay support at the time of the hearing. A de novo hearing to determine the support obligations of both parties was held on September 6, 1989 in Wyoming County. It is the child support order issued following that hearing from which Eugene timely appeals.

In reviewing an order of child support we will not overturn the order unless the court abused its discretion in fashioning the award. Such abuse will be found where there is insufficient evidence to sustain the award or when the law is overridden or misapplied. Commonwealth ex rel. Sladek v. Sladek, 386 Pa.Super. 490, 563 A.2d 172 (1989); Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). It is indisputable that such abuse has occurred in this case.

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1981), our Supreme Court enunciated guidelines to be followed by trial courts in ascertaining and issuing child support orders. The Melzer formula initially requires a determination of the reasonable needs of the children involved. Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988).

The trial court was without testimony or evidence as to the reasonable needs of both children. While Eugene provided extensive testimony concerning his expenditures for Jason who is in his care (N.T. 9/6/89 at 37-42), there was no testimony or evidence of any kind presented concerning expenditures for Rebecca who is in Nancy’s care. Absent such evidence, there was no basis on which to determine what Rebecca’s reasonable needs may have been. Such a needs determination is integral to be in compliance with Melzer.

Further, the income of Nancy, on which the court based its support order, was based on commissions earned in one period in 1989 and held to be $175 per week or $19,000 per annum, when Nancy herself testified that her salary varied through the year but that from May through December of 1987 she earned $17,000 or $18,000, and in 1988 she earned $38,000. (N.T. 9/6/89 at 22). The trial court neglected to ascertain Nancy’s gross earnings for 1989 and gave no reason for basing its award on the commissions earned in only one period when that amount was only 50% of her actual earnings in the job in each of the prior two years, and thus was clearly not indicative of her proven earning capacity. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). In Pennsylvania both parents share an equal responsibility for supporting their children and must be required to discharge their obligations in accordance with their capacity and ability. Michael v. Michael, 360 Pa.Super. 312, 520 A.2d 473, appeal denied, 515 Pa. 623, 531 A.2d 431 (1987). The ability to pay support is determined primarily by the parent’s financial resources and earning capacity. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871, appeal denied, 517 Pa. 631, 539 A.2d 811 (1988). It was an abuse of discretion not to base Nancy’s support obligation on her established earning capacity.

In addition, the court failed to ascertain Nancy’s interest and actual or potential income from the antique business in which she is involved with her own mother, or her own activity in the antique toy trade as well as the extent of her personal holdings and investment in antique toys. It appears from the evidence presented that Nancy has additional sources of potential income for inclusion in determining her support obligation, about which the court neglected to gather accurate evidence of value. The trial court must consider every aspect of a parent’s financial ability to pay support including property interests, stocks or other forms of investment. Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988). When, as may be the case here, a parent has a business which retains profits and earnings without sufficient business justification, those retained earnings are also required to be included in income for the purpose of determining support. King v. King, 390 Pa.Super. 226, 568 A.2d 627 (1989). The trial court failed to request tax returns, business records or any other evidence to establish the extent of Nancy’s personal or business holdings in antiques or her involvement in her mother’s antique business. We note the fact that Nancy’s mother slammed her door on the hand of the man attempting to serve her the subpoena to attend the support hearing, which she did not attend, indicates a reluctance to provide the court the very information it needed to assist in fairly deciding this case. (N.T. 9/6/89 at 59).

Additionally, the trial court made no reference either on the record or in its order to the support guidelines or the formula for calculation of child support established by our Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The support guidelines promulgated in response to 23 Pa.C.S.A. § 4322 and the Melzer formula for calculation of child support must both be considered and computed on the record. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). Any deviation from the Melzer formula must be warranted by the circumstances of the case and no extraordinary circumstances were presented in this case. Shutter, supra; Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 513 A.2d 448 (1986).

Finally, the trial court vacated arrearages due to Eugene beginning January 15, 1988 totalling almost $6,000, and due to Nancy of approximately $1,400 without any determination that the money due to either Eugene or Nancy under the two separate orders was not a correct determination of the support arrearages owed. The testimony of Eugene and Nancy established that at the time Eugene petitioned for support he and Nancy were earning $40,000 and $38,000 respectively. They each had one minor child in their care yet only Eugene was paying support. It appears the Court of Wyoming County recognized the inequity of the situation when it placed Nancy under court order to make a reciprocal support payment to fulfill her obligation of support to Jason. The subsequent unexplained vacation of Nancy’s entire support obligation to Jason contravenes our law by neglecting to consider and include in the child support determination the amounts that Eugene is already expending in the care of Jason while creating still further burden for the care of Rebecca which appears disproportionate to the parties almost equal wages at the time. Our cases have consistently held that it is an abuse of discretion for the court not to consider the expenses incurred by a supporting parent for the children in his care when computing his support obligation for a child not living with him. Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989); Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988).

The vacation of the arrearages recreated the inequitable situation which initially led Eugene to petition for support. There is no presumption that a father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal financial support obligation for children. Bower v. Hoover, 370 Pa.Super. 321, 536 A.2d 426 (1988). Both parents are obligated to contribute to the support of their children in accordance with their respective abilities. Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). Absent legal basis to find the support orders upon which arrearages accrued were improper, each parent must fulfill their legal obligation to their children. The trial court’s stated reason for vacating each party’s debt to the other—“to wipe both slates clean”—is obviously lacking in sound legal basis and cannot be affirmed by this Court. Additionally, the trial court was not in compliance with 23 Pa.C.S.A. § 4352(d) when it ordered vacation of the arrearages.

Based on the foregoing the order of the trial court is vacated and we remand the case for appropriate calculation of the support needs of each child as well as each parent’s ability to pay and entry of a new support order for all periods beginning January 15, 1988, when Eugene initially petitioned for and was granted support from Nancy for Jason. Jurisdiction relinquished.

Order VACATED.

      . The hearing and order of the court were governed by the law and procedures in existence prior to the adoption of the statewide guidelines under Rules of Civil Procedure 1910.16-1 to 1910.16-5 effective September 30, 1989. The new guidelines assign a percentage of income, rather than a need determination, as the basis of the award. The manner of application of the new guidelines on remand is a matter for the trial court to determine in the first instance.


author: DEL SOLE, Judge:

text:
    577 A.2d 644
    Kimberlee PANZANO, Appellant, v. The LOWER BUCKS HOSPITAL, Jerry F. Naples, M.D., Richard L. Turner, D.O., Harish C. Chawla, M.D., Frank M. Rech, M.D., and Jerold M. Snyder, D.O., Appellee.
    Superior Court of Pennsylvania.
    Argued May 1, 1990.
    Filed July 18, 1990.

      Mark S. Pearistein, Philadelphia, for appellant.
    Steven D. Costello, Philadelphia, for Lower Bucks Hosp., appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

In this appeal, Kimberlee Panzaiio claims that the trial court erred in granting preliminary objections on the basis of improper venue, and improperly transferred this medical malpractice action from Philadelphia County to Bucks County, Pennsylvania. Appellant contends that venue was proper in Philadelphia County, because Lower Bucks Hospital “regularly conducts business” in Philadelphia County. 42 Pa.C.S'A.; Rule 2179(a)(2).

Our standard of review regarding orders determining venue was articulated by our supreme court in Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965). In Monaco the court stated, “Each case must depend on its own facts. Accordingly, we will not overturn a lower court’s determination that a corporation was not regularly conducting business in a particular county when such conclusion is a reasonable one in view of the facts.” Id., 417 Pa. at 143, 208 A.2d 252; Accord, Purcell v. Bryn Mawr Hospital, 379 Pa.Super. 626, 631-632, 550 A.2d 1320 (1988) (en banc).

After a close review of the record, we find that the trial court’s conclusion that Lower Bucks Hospital was not regularly conducting business in Philadelphia County is reasonable. We also hold that the trial court properly distinguished the facts in this case from those in the leading case, Purcell v. Bryn Mawr Hospital, supra. Accordingly, on this issue, we affirm on the trial court’s opinion.

Appellant, however, also argues that because not all the defendants raised the issue of improper venue in their preliminary objections, See, 42 Pa.C.S.A.; Rule 1006(e), these defendants waived this issue. Furthermore, this then triggers 42 Pa.C.S.A.; Rule 1006(c), which states:

An action to enforce joint or joint and several liability against two or more defendants except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants.

Thus, Appellant concludes that because some defendants waived any objection to venue, venue must be proper against all the defendants including the defendant who challenged venue.

We disagree. Waiver of objection to improper venue does not amount to a finding that venue is proper and “may be laid” there. Therefore, an action which may be brought in a particular county, because a defendant has waived objection to it, is not necessarily an action in which venue is properly laid for the purposes of Rule 1006(c). As Appellant fails to cite any case law supporting her argument, we will not endorse this interpretation of Rule 1006(c). Such an interpretation would lead to the determination that one defendant’s waiver of a right to challenge the propriety of a specific venue, results in waiver for all defendants.

We therefore affirm the order of the trial court transferring venue to Bucks County, Pennsylvania.


author: BROSKY, Judge.

text:
    577 A.2d 894
    Henrietta OTT, Appellant, v. UNCLAIMED FREIGHT CO., L & J Realty Company.
    Superior Court of Pennsylvania.
    Submitted April 16, 1990.
    Filed July 11, 1990.

      Jeffrey M. Yoluck, Philadelphia, for appellant.
    Robert A. Selig, West Conshohocken, for Unclaimed Freight, appellee.
    Maureen A. Mahoney, Philadelphia, for L & J, appellee.
    Before McEWEN, OLSZEWSKI and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order of the trial court which granted summary judgment in favor of appellees. Appellant presents the following two issues for review: (1) whether a possessor of land owes a duty to individuals, who walk across a parking lot located on the land, to keep the lot free of snow and ice; and (2) whether the trial court erred in granting summary judgment in favor of appellees pursuant to the assumption of risk doctrine.

The relevant facts are as follows. On February 2, 1987, appellant, Henrietta Ott, parked her car and was on her way to the Frankford El (El). Ott decided to take a shortcut, by walking first through a bank parking lot or driveway, and then through a parking lot controlled by appellees, Unclaimed Freight Co. (USF, Inc.) and L & J Realty, Co. (L & J). According to Ott, this shortcut was used by other individuals. Although snow and ice were present on the surface of the parking lot and were readily apparent to Ott, she attempted to cross the parking lot. After proceeding over approximately one-third of the lot, Ott slipped and fell on a patch of ice. Ott sustained a broken wrist, dizzy spells, and neck and chest pains as a result of the fall, and commenced suit against USF and L & J to recover for these injuries. After taking Ott’s deposition, appellees filed a motion for summary judgment. In granting summary judgment in favor of appellees, the trial court concluded that appellees owed no duty to Ott because she assumed the risk of crossing the ice-covered parking lot. For the reasons set forth below, we affirm the order of the trial court.

In reviewing the trial court’s grant of summary judgment, we are guided by the following standard:

Summary judgment may be entered only in those cases which are clear and free from doubt____ In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party____ It is not the court’s function to decide issues of fact but solely to determine if there is an issue of fact to be tried____ Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings ... [and] restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted____

Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 63, 563 A.2d 1182, 1185 (1989), allocatur denied, 524 Pa. 629, 574 A.2d 70 (1990) (citations omitted) (emphasis in original).

Ott first argues that appellees owed her a duty to keep their sidewalk in a safe condition. The facts of this case, however, do not involve a sidewalk which abuts a public roadway, rather a private parking lot, which is set back from the public roadway is at issue. Therefore, the duty owed by a possessor of land to the public to maintain sidewalks, which are located on his or her property and which border a public roadway, is irrelevant to this case.

Initially we observe that appellee L & J owed no duty to Ott. “As a general rule, a landlord out of possession is not liable for injuries sustained by persons on his or her property unless the landlord has retained the right to control the portion of the premises on which the injury occurred.” Oswald v. Hausman, 378 Pa.Super. 245, 255-256, 548 A.2d 594, 600 (1988). See also the Restatement (Second) of Torts § 356. There is no evidence that L & J retained the right to control the parking lot; rather, the record demonstrates that USF was responsible for controlling and maintaining the parking lot. See clause (h) of Lease attached to the Answer and New Matter filed by L & J, which specifically provides that USF was responsible for maintaining the parking lot free of snow and ice. Under these circumstances, L & J owed no duty to Ott, and was therefore entitled to have summary judgment entered in its favor.

In view of our conclusion that L & J owed no duty to Ott, the remainder of our discussion will focus on whether USF, as a tenant in possession of the premises, owed a duty to Ott to maintain the parking lot free of snow and ice. With respect to this issue, the Pennsylvania Supreme Court has observed that “[t]he standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee or invitee.” Carrender v. Fitterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). Thus, in order to ascertain what duty of care was owed to Ott, we must first determine whether Ott was a trespasser, licensee or invitee.

The Restatement (Second) of Torts § 329 defines a trespasser as “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” See also Oswald, supra, 378 Pa.Super. 245, 253, 548 A.2d 594, 598 (1988). In contrast, a licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” § 330 of the Restatement; see also Oswald, 378 Pa.Super. at 254, 548 A.2d at 599. Finally, an invitee is described as follows:

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.

Restatement (Second) of Torts § 332. After reviewing the above definitions, it is evident that Ott cannot be classified as an invitee since the land was not held open for a public purpose and Ott was not invited to enter the land as a member of the general public. Similarly, Ott was not a business visitor who had direct or indirect business dealings with either USF or L & J. See § 332 and the comments thereto for examples of public invitees and business visitors. However, the question remains as to whether Ott was a trespasser or a licensee.

In this case, Ott testified that she frequently used the shortcut across USF’s parking lot to get to the El. See Deposition of Ott at pp. 13-14, and 47. She further testified that other individuals used this route as a shortcut. See id. at p. 12. USF did not offer any evidence to rebut these statements. There was also no indication that USF posted a notice or otherwise objected to Ott or other persons cutting across the parking lot. Under these facts, we are unable to determine whether USF’s consent to cross the property can be inferred. See comments c and e to § 330 of the Restatement. As a result, we will address the duty of care owed to both trespassers and licensees, respectively.

Under Pennsylvania law, it is well settled that “[t]he duty owed to trespassers by a property owner is only to refrain from willful or wanton misconduct....” Graham v. Sky Haven Coal, Inc., 386 Pa.Super. 598, 609 and 614, 563 A.2d 891, 896 and 899 (1989).

Willful misconduct means that the actor desired to bring about the resultant harm, or was at least aware that it was substantially certain to ensue; this means that willful conduct requires actual prior knowledge of the trespasser's peril____ Wanton misconduct, by contrast, means that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person’s peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a peril exists, for a sufficient time beforehand to give the actor a reasonable opportunity to take means to avoid the injured person’s accident; the actor is wanton for recklessly disregarding the danger presented____

Id., 386 Pa.Super. at 607 and 615, 563 A.2d at 895 and 891 (Brosky, J., concurring and dissenting opinion) (emphasis in original) (internal citations omitted).

In view of the above reasoning, if we assume that Ott is a trespasser, then Ott has the burden of proving that USP engaged in willful or wanton misconduct. As applied to this case, it appears that Ott would ask that we find USF’s failure to remove snow and ice from their private parking lot willful and wanton. This we decline to do. The most typical example .of willful or wanton misconduct is found where a landowner strings a piece of wire or cable over á roadway or path to prevent trespassers from driving over the land. In such cases, the unsuspecting trespassers have often sustained severe or fatal injuries. See e.g., Graham, supra, Krivijanski v. Union Railroad Co., 357 Pa.Super. 196, 515 A.2d 933 (1986), and Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983). When read together, these cases do not establish a duty on the part of the possessor to maintain the land; rather they stand for the proposition that the landowner may not intentionally erect structures or devices which will result in severe harm or a risk of death to the trespasser.

Oswald, supra, is more analogous to this case than the cases which involve cable or wire strung across a path or road. In Oswald, the plaintiffs decedent drove his vehicle off of the paved highway and proceeded down a private, snow-covered dirt lane until his vehicle became stuck. Plaintiff sought to impose liability on the defendant for failing to maintain the roadway in a reasonably safe condition for travel. On appeal, this court rejected Oswald’s argument and declined to hold that the failure to remove snow from a private roadway was an example of willful or wanton misconduct.

For support, appellant relies on cases involving a landowner’s duty to maintain sidewalks which border a public roadway, however, she has not referred us to any authority which would require a landowner to maintain his private parking lot free of ice and snow where individuals trespass across it. Accordingly, we see no reason to depart from the approach taken by this court in Oswald, and we decline to impose a duty upon a possessor to clear snow and ice from a parking lot for the benefit of trespassers. Because USF owed Ott no duty to remove the snow and ice, the trial court correctly granted USF’s motion for summary judgment.

However, if we assume that Ott is a licensee, the duty of care is somewhat different. The Restatement (Second) of Torts § 342 describes the duty of care owed to licensees as follows:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

In addition, this court has observed that:

[t]he liability of a possessor of land who invites or permits gratuitous licensees to enter his land, is not based upon his duty to maintain it in safe condition. It is based upon his duty to disclose to them the risk which they will encounter if they accept his invitation or permission. He is required to exercise reasonable care either to make the land as safe as it appears or to disclose the fact that is as dangerous as he knows it to be.

Oswald, supra, 386 Pa.Super. at 254, 548 A.2d at 599.

Application of this standard leads us to conclude that even if Ott is a licensee, USF owed no duty to Ott to keep the parking lot free of snow and ice. Ott stated in her deposition that she could see the ice and could distinguish the ice from the bare ground. See Deposition of Ott at pp. 8-10. More importantly, Ott testified that she knew that the ice was slippery and that she could slip and fall on the ice and be injured. See id. at p. 53. Therefore, based on Ott’s own testimony, it is clear that Ott was aware of the hazard, but nevertheless proceeded to encounter it in spite of the fact that an alternative route was readily available to her. Because the condition of the parking lot was made known to Ott and because she was well aware of the risks involved in attempting to cross the ice, we hold that USF owed no duty to Ott, as a licensee, to remove the snow and ice, and therefore, the grant of summary judgment in favor of USF must be affirmed.

The second issue raised by appellant involves the question of whether summary judgment can be granted on the basis of the assumption of the risk defense. Appellant believes that her case should be submitted to the jury under the comparative negligence statute. As recognized by the Supreme Court, “[f]or fault to be apportioned under the comparative negligence statute, there must be two negligent acts: a breach of duty by the defendant to the plaintiff and a failure by the plaintiff to exercise care for his own protection.” Carrender, 503 Pa. at 188, 469 A.2d at 125. The comparative negligence act is inapplicable to the facts of this case, however. As discussed above, we found that L & J, as a landlord out-of-possession, owed no duty to Ott. We further held that USF owed no duty to Ott, as either a trespasser or a licensee because the condition of the lot was known and obvious, and because Ott was aware of the risk involved in crossing the icy parking lot. Consequently, if appellees owed no duty to Ott, then a fortiori there can be no breach of duty.

If we assume, for the purpose of this discussion only, that appellees did owe a duty to appellant, then the question remains as to whether the assumption of the risk doctrine is applicable. At the present time, there seems to be a question as to whether this defense has been abolished. See Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 614-616 n. 6, 437 A.2d 1198, 1210-1211 n. 6 (1981) (plurality opinion). However, a majority of the Pennsylvania Supreme Court has yet to directly address the issue of whether the assumption of the risk doctrine remains viable, and panels of this court have continued to apply the doctrine. See e.g., Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988), Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988), Johnson by Johnson v. Walker, 376 Pa.Super. 302, 545 A.2d 947 (1988), allocatur denied, 522 Pa. 577, 559 A.2d 38 (1989), and Howell v. Clyde, 383 Pa.Super. 611, 557 A.2d 419 (1989).

Generally, a plaintiff will be found to have assumed the risk only where it has been sufficiently demonstrated that he or she “ ‘fully understands’ the specific risk, [and] ‘voluntarily chooses’ to encounter it, ‘under circumstances that manifest a willingness to accept it’ ”. Berman, supra, 374 Pa.Super. at 136, 542 A.2d at 533, quoting Fish v. Gosnell, 316 Pa.Super. 565, 576-579, 463 A.2d 1042, 1048-1049 (1983). Ott’s deposition in this case more than sufficiently satisfies these requirements. When asked whether she knew if the ice was slippery, or that she could slip and fall and possibly be injured, Ott unequivocally answered “yes”. See Deposition of Ott at p. 53. Ott further stated that although an alternative route was available, she chose to cross the parking lot because she felt that it was shorter. Id. at pp. 10 and 52. In view of this testimony, we must conclude that Ott fully understood that she could fall on the ice and sustain injury, and that she voluntarily chose to cross the parking lot, even though there was an alternative path available to her. Therefore, if it is assumed that appellees owed a duty to Ott and further assuming that the assumption of the risk defense still exists, we would find that Ott assumed the risk of crossing the parking lot.

In sum, we have found that regardless of whether Ott is treated as a trespasser or licensee, neither appellee owed no duty to remove the snow and ice from the parking lot. L & J owed no duty since it was a landlord who retained no right of control over the parking lot. USF also owed no duty to Ott, as either a trespasser or licensee because the condition of the lot was readily apparent and an alternative route was easily available. Further, we stated that if we were to assume that appellees owed a duty to appellant, then Ott assumed the risk of crossing the lot because she was aware that the ice existed and that she could be injured if she were to fall. Under these circumstances, appellees were entitled to summary judgment, and the order of the trial court must be affirmed.

Order affirmed.

      . The El is part of Philadelphia’s mass transportation system.

      . When appellant initially filed her complaint, she incorrectly named USF, Inc. as Unclaimed Freight Co. To correct this error, counsel for USF and Ott stipulated to an amendment of the caption so that USF, Inc. would be the named defendant. For the purpose of this appeal, USF, Inc. will be referred to as USF.

      . The record indicates that L & J was the owner of the land on which > the parking lot was located. A building was also located on this property, which was owned by L & J and was leased to USF and other tenants.

      . Ott testified in her deposition that she had to first cut through the Philadelphia National Bank (PNB) parking lot or driveway to get to USF's lot. See Deposition of Ott at p. 7.

      . USF asserts that Ott was a trespasser. See Brief of USF at p. 4. It does not appear from the record that Ott denies this characterization. However, based on Ott’s statements that she and other individuals used this route, it is at least arguable that Ott was a licensee.

      . This statement should not be construed to imply that Ott was in fact a licensee. In making this statement, we merely recognize that her status is questionable in view of the comments to the Restatement. See e.g., comment e to § 330 which provides that consent may be expressed by acts, rather than words. As an illustration, comment e suggests that where a possessor permits individuals to cut across his or her property as a shortcut, the individuals who cross the property will be treated as licensees, and not trespassers, unless the possessor posts notice or otherwise manifests an objection. However, comment c to § 330 states that under certain circumstances, consent may not necessarily be inferred from a landowner’s failure to object or post a warning. Thus, whether a possessor’s conduct may be construed as consent, depends upon the particular facts and circumstances of each case. As such facts are not fully developed in this record, we cannot with certainty determine whether USF consented to Ott’s use of its parking lot as a passageway. Our inability to precisely label Ott as a trespasser or licensee does not hamper our review of this case, however.


author: TAMILIA, Judge:

text:
    577 A.2d 899
    COMMONWEALTH of Pennsylvania v. Tonya D. LONG, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1990.
    Filed July 13, 1990.

      Carleton G. Goodnow, Glenside, for appellant.
    Mary Macneil Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant Tanya D. Long appeals from judgment of sentence entered October 24, 1989, after she was convicted of speeding in a school zone in a de novo hearing following her appeal from the judgment of a district justice, and sentenced to pay a fine of $45 and costs for a total of $67.50.

The facts which gave rise to this appeal are as follows. On February 1, 1989, appellant was cited for a violation of section 3365(b) of the Vehicle Code by a Springfield Township police officer using a VASCAR-plus radar timing unit. At the time of the citation, appellant was driving in an established school zone near LaSalle College High School.

On appeal, appellant first argues she cannot be convicted for failing to heed a school zone speed sign which was improperly placed. The disputed traffic control device was in an overhead position rather than posted on the right-hand side of the road, as appellant contends it should have been.

The statutory provisions for compliance with traffic-control devices are set forth in section 3111 of the Vehicle Code.

(b) Proper position and legibility of device.—No provision of this title for which official traffic-control devises are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic control devices are required, the section shall be effective even though no devices are erected or in place.
(c) Presumption of authorized placement—Whenever official traffic-control devices are placed or held in position approximately conforming to the requirements of this title, the devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence.
(d) Presumption of proper devices.—Any official traffic-control device placed or held pursuant to the provisions of this title and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this title, unless the contrary shall be established by competent evidence.

75 Pa.C.S. § 3111. Department of Transportation regulations concerning school zone speed limits are also set forth in Title 67 of the Pennsylvania Code:

(a) Establishment. A school zone speed limit may be established in accordance with section 3365(b) of the Vehicle Code (75 Pa.C.S. § 3365(b)) provided an engineering and traffic study, justifying the proposed school zone speed limit, has been conducted in accordance with § 201.32 (relating to school zones and school zone speed limits), and the proposed school zone speed limit has been approved by the Department. The school zone speed limit shall be established only within a school zone established as a result of an engineering and traffic study made in accordance with and approved by the Department. The school zone speed limit shall not extend beyond the school zone.
(b) Posting. A school zone speed limit shall be posted on official traffic control devices as follows:
(1) At the beginning of the school zone speed limit on the right side of the roadway, one of the following signs or groups of signs will be posted:
(i) A Speed Limit Sign, R2-1, with the appropriate school zone speed limit, with a School Panel, S4-3, mounted above the R2-1 sign and a When Flashing Sign, S4-4, mounted below the R2-1 sign, with two flashing Speed Limit Sign Beacons as provided in § 211.1072 (relating to speed limit sign beacons).
(ii) A Department-approved Variable School Speed Limit Sign as provided in § 211.971 (relating to variable school speed limit sign).
(iii) A Speed Limit sign, R2-1, with the appropriate school zone speed limit, with a School Panel, S4-3, mounted above the R2-1 sign and a Restricted Hours Panel, R3-20, mounted below the R2-1 sign.
(2) An End School Zone Sign, S4-11, shall be posted on the right side of the roadway, at the end of the school speed limit zone.

67 Pa.Code § 211.75 (1983) (emphasis added).

Appellant argues the above departmental regulations are clear and unambiguous, and insofar as the regulations govern and clarify other provisions of the Vehicle Code, they become penal in nature and must be strictly construed. 1 Pa.C.S. § 1928; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). “However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s evident intent be disregarded.” Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558 (1986).

In attempting to ascertain the meaning of the statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super.. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa. Super. 151, 563 A.2d 1229 (1989).

In this light, we examine related Department of Transportation regulations. Section 211.28 of the regulations deals with the standardization of location of traffic control devices.

(a) Right-hand side. Standardization of location cannot always be attained in practice; however, the general rule is to locate signs on the right-hand side of the roadway, where the driver is looking for them. On wide expressways or when some degree of lane use control is desirable, or when space is not available at the roadside, overhead signs are often necessary____

67 Pa.Code § 211.28 (1988).

Section 211.29 then specifically deals with overhead sign installations, such as the one instantly.

(a) Justification. The operational requirements of our present highway system are such that overhead signs will have value at many locations. The factors justifying the use of overhead signs are not definable in specific numerical terms, but the following conditions deserve consideration:
(1) Traffic volume at or near capacity.
(a) High speed of traffic.
(ii) Insufficient space for ground signs.
(b) Ground signs. The existence of any one or more of the conditions listed in subsection (a) does not automatically justify the use of signs overhead. Rather, overhead signs have application in lieu of or as an adjunct to ground signs when engineering study indicates that they are needed. Some of the elements listed in this section can be made less critical by close coordination between design and operation.

Id., § 211.29.

Appellant argues the need for uniformity of placement of traffic control devices and signs mandates their placement on the right-hand side of the roadway, and precludes overhead sign placement, thereby requiring dismissal of the charge against her. However, the above regulations and their common sense application by this Court clearly encompass the multitude of conditions and diversity of our roadways which prevents the identical placement of every sign. Such rigidity would often negate the ameliorative goals of the traffic control devices themselves. For these reasons, we find the school zone speed limit sign in this case was positioned properly, as required by section 3111 of the Vehicle Code, and absent any competent evidence to the contrary, the Commonwealth is entitled to a presumption that it was placed in accordance with statutory and regulatory requirements. Appellant’s argument is therefore without merit.

Appellant next argues the Department of Transportation Bureau of Traffic Engineering Flashing Warning Device Permit was improperly admitted. As our examination of the record in this case discloses neither a certified copy of the permit, nor the original, we rely on the Opinion of the trial court.

[Appellant] alleges the Commonwealth’s authority to erect and establish a school speed zone on Cheltenham Avenue near LaSalle College High School was erroneously admitted as hearsay evidence. However, the Commonwealth produced a certified copy (the original was present at trial) of the Flashing Warning Device Permit issued by PennDot for a school flashing light sign on Cheltenham Avenue. Pennsylvania courts recognize the official statement exception to the hearsay rule for written statements of public officials prepared pursuant to an official duty. Commonwealth v. Slider, 229 Pa.Super. 93, 323 A.2d 367, [376] (1974). Commonwealth v. Lee, 244 Pa.Super. 460, 368 A.2d 812 (1976). Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). This exception avoids the inconvenience and disruption of public affairs which appearances in court would otherwise require. Commonwealth v. Slider, supra. The Flashing Warning Device Permit was prepared by a public official as part of his duty and therefore was properly admitted under that exception.

Slip Op., Brown, J., 2/6/90, p. 2.

Viewing all inferences reasonably drawn from the evidence of record and read in the light most favorable to the Commonwealth as verdict winner, we find the evidence sufficient to sustain appellant’s conviction. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989).

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3365(b).


author: CERCONE, Judge:

text:
    577 A.2d 902
    Roberta WARE, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed July 20, 1990.

      Allen L. Feingold, Philadelphia, for appellant.
    James B. Jordan, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment in favor of appellant, Roberta Ware, which required appellee, United States Fidelity & Guaranty Company (“Fidelity”) to pay non-record costs and nominal counsel fees. For the reasons set forth below, we vacate the award and remand the case to the trial court.

Appellant sustained personal injuries as a result of a motor vehicle accident which occurred in February of 1981. On August 2, 1981, as part of her effort to obtain reimbursement for medical expenses incurred, Ms. Ware submitted to Fidelity a claim for professional services rendered by Leonard Klinghoffer, M.D. for which he billed a total of one hundred sixty dollars ($160.00). On May 7, 1984, appellant submitted an additional claim for an office visit to Dr. Klinghoffer in the amount of thirty dollars ($30.00). At that time Ms. Ware also requested Fidelity to pay her prior one hundred sixty dollar claim. Both submissions were sent via certified mail, and the return receipts indicate that Fidelity received each claim the day after it was mailed. Neither claim was paid within thirty (30) days of Fidelity’s receipt of the May 7, 1984 submission.

Appellant commenced an action against Fidelity on June 19, 1984 to which Fidelity responded by filing an answer and new matter on July 10, 1984. The matter proceeded to discovery and was eventually presented before an arbitration panel. The arbitration award in favor of Ms. Ward required Fidelity to pay the sum of thirty seven dollars and fifty cents ($37.50) for non-record costs and two hundred fifty dollars ($250.00) for attorney’s fees. Ms. Ward timely filed an appeal from the award of arbitration. A hearing was held on October 5, 1987, after which the Honorable Alfred J. DiBona, Jr. confirmed the arbitration award.

Appellant filed post-trial motions which were denied by the lower court on July 12, 1988. On September 14, 1989, appellant filed a praecipe to enter judgment. The instant appeal followed in which appellant raises two issues for our consideration:

1. Whether the trial [cjourt was obligated to recuse itself from this matter.
2. Whether the trial [cjourt erred when it denied the plaintiff’s claim for payment of Dr. Klinghoffer’s medical bill plus 18% interest, reasonable costs, interest and attorney’s fees, under the Pennsylvania No-Fault Insurance Act.

Additionally, appellee raises the following issue:

Whether the Superior Court is without jurisdiction to entertain this appeal on the basis that the appeal is untimely.

We will address appellee’s argument first.

An order confirming or denying confirmation of an arbitration award must first be reduced to judgment before it may be appealed. Seay v. Prudential Prop. & Cas. Ins., 375 Pa.Super. 37, 40, 543 A.2d 1166, 1168 (1988), allocatur dismissed, 523 Pa. 105, 565 A.2d 159 (1989). Thus, the time for filing such an appeal begins to run from the entry of final judgment, not from the date of the order confirming the award. Id. In the instant case, final judgment was entered on September 14, 1989 and Ms. Ware filed notice of appeal to this court on that same day. As appellant took her appeal within thirty days of the entry of final judgment, we conclude that her appeal was timely.

Appellant first argues that the trial court was obligated to recuse itself from the case underlying the instant appeal. The gravamen of appellant’s complaint is that the lower court judge, the Honorable Alfred J. DiBona, Jr., has always been predisposed to rule against counsel for appellant and whatever client he represents, even when the law is clearly in their favor. In support of this contention, counsel for appellant cites multiple instances in which Judge DiBona has ruled against other clients represented by appellant’s counsel, Allen L. Feingold.

It is beyond dispute that “a party to an action has the right to request the recusal of a jurist where that party has a reason to question the impartiality of the jurist in the cause before the court.” Goodheart v. Casey, 523 Pa. 188, 198, 565 A.2d 757, 762 (1989). However, a mere recitation of unfavorable rulings against an attorney does not satisfy the burden of proving judicial bias, prejudice or unfairness. Feingold v. Hill, 360 Pa.Super. 539, 521 A.2d 33 (1987), allocatur denied, 515 Pa. 607, 529 A.2d 1081 (1987). Moreover, a party seeking recusal or disqualification must “raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” Goodheart v. Casey, supra, 523 Pa. at 199, 565 A.2d at 763. Accord Rizzo v. Haines, 520 Pa. 484, 511, 555 A.2d 58, 71 (1989) (party who seeks recusal of a judge must present sufficient information in a timely fashion). Our supreme court has enunciated the rule concerning the substance of a recusal motion as follows:

When circumstances arise during the course of a trial raising questions of a trial judge’s bias or impartiality, it is still the duty of the party, who asserts that a judge should be disqualified, to allege by petition the bias, prejudice or unfairness necessitating recusal. A failure to produce a sufficient plea will result in a denial of the recusal motion.
The proper practice on a plea of prejudice is to address an application by petition to the judge before whom the proceedings are being tried. He may determine the question in the first instance, and ordinarily his disposition of it will not be disturbed unless there is an abuse of discretion.

Reilly by Reilly v. SEPTA, 507 Pa. 204, 220, 489 A.2d 1291, 1299 (1985) (citations omitted). A party seeking recusal must assert specific grounds in support of the recusal motion before the trial judge has issued a ruling on the substantive matter before him or her. See id., 507 Pa. at 222, 489 A.2d at 1300 (party is deemed to have waived his right to have a judge disqualified once trial is completed with the entry of a verdict). A party may not raise the issue of judicial prejudice or bias for the first time in post trial proceedings. Id., 507 Pa. at 222-23, 489 A.2d at 1300.

In the instant case, appellant did not question Judge DiBona’s fairness until after he issued the order of October 5, 1987, affirming the arbitration award. Appellant first raised the issue of the trial judge’s alleged bias in a motion for post-trial relief filed October 16, 1987. Thus, appellant waited too long to challenge the partiality of Judge BiBo: na’s ruling. See id., 507 Pa. at 223, 489 A.2d at 1300 (disapproving the practice of subjecting every case to unlimited questioning of the trial judge’s impartiality and finding waiver of such claims when they have not been raised before entry of the verdict).

Further, appellant’s brief merely recites a string of instances in which Judge DiBona has ruled against other clients represented by Attorney Feingold. This is not enough to satisfy the requirement that charges of judicial partiality must be set forth with specificity and supported by evidence establishing bias, prejudice or unfairness necessitating recusal. See Feingold v. Hill, supra, 360 Pa.Super. at 551, 521 A.2d at 39-40. Under the circumstances presented by the record in the instant case, we can offer appellant no relief on this claim.

The final issue raised by appellant is that the trial court erred in denying her claim for payment of Dr. Klinghoffer’s bills plus 18% interest, reasonable costs, interest and attorney’s fees. The record indicates that both parties are in clear agreement that any benefits payable to appellant were owed under a policy of no fault insurance. We note that the arbitration in the instant case was apparently conducted under the Uniform Arbitration Act of 1980 (“Uniform Arbitration Act”), 42 Pa.C.S.A. §§ 7301-7320. Our scope of review is therefore governed by the Uniform Arbitration Act. See Littlejohn v. Keystone Insurance Co., 353 Pa.Super. 63, 509 A.2d 334 (1986) (elucidating scope of review applicable to appeal from statutory arbitration under both Uniform Arbitration Act and Arbitration Act of 1927, 5 P.S. §§ 161-179 (repealed)).

Where statutory arbitration is involved, a reviewing court may modify or correct an award that is contrary to law, just as if it were rendered by a jury and vulnerable to change because of impropriety. Littlejohn, supra at 67, 509 A.2d at 336-37. See 42 Pa.C.S.A. § 7302(d)(2). See also Meerzon v. Erie Insurance Co., 380 Pa.Super. 386, 551 A.2d 1106 (1988) (explicating “contrary to law” standard of review as applicable to appeal from an order confirming a statutory arbitration award). But cf. Popskyj v. Keystone Insurance Co., 388 Pa.Super. 429, 565 A.2d 1184 (1989) (en banc) (arbitration award entered in dispute pursuant to insurance policy was not automatically entitled to review under error of law standard set forth in Uniform Arbitration Act of 1980). Appellant does not contend that the award was contrary to law with regard to her medical bills, or the interest owing thereon. She has, however, set forth a fully developed argument relating to the attorney’s fees and costs awarded by the panel of arbitrators and confirmed by the trial court. We find that the attorney’s fees and costs granted are clearly inadequate under the Pennsylvania No Fault Motor Vehicle Insurance Act (“No Fault Act”).

The No Fault Act provides for the payment of attorney’s fees as follows:

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

40 P.S. § 1009.107 (emphasis added). The record in the instant case discloses that appellee admitted to having paid overdue benefits to appellant after she instituted the action underlying the instant appeal and served notice to appellee that she was represented by present counsel. N.T. 10/5/87 at 36. Appellant was therefore entitled to an award of “reasonable attorney’s fees” based on the actual time expended by her attorney under § 1009.107(1), supra. Appellant was also entitled to receive costs. See Solomon v. Sentry Insurance Co., 324 Pa.Super. 329, 333-34, 471 A.2d 863, 865-66 (1984) (attorney’s fees are recoverable by no-fault claimant if overdue no-fault benefits are paid after the insurer receives notice of representation of a claimant in connection with a claim or action for no-fault benefits; costs are ordinarily awarded to the prevailing party).

The reasonableness of attorney’s fees is a matter within the sound discretion of the trial judge. Danks v. Government Employees Insurance Co., 307 Pa.Super. 421, 424, 453 A.2d 655, 656 (1982). In construing the language of § 1009.107(3) of the No Fault Act, the Danks court held that a “reasonable fee” based on “time actually expended” must take into consideration the number of hours actually expended by counsel, the reasonableness of the hourly fee charged, and the amount of time appropriately spent by counsel on the claimant’s case. Id., 307 Pa.Superior Ct. at 424-25, 453 A.2d at 656-57. We find it sensible to apply the standard set forth in Danks when determining counsel fees under § 1009.107(1) of the No Fault Act.

In the instant case, the board of arbitrators awarded thirty-seven dollars and fifty cents ($37.50) in non-record costs as well as two hundred fifty dollars ($250.00) in counsel fees in connection with appellant’s attempt to secure the benefits to which she was entitled. The lower court subsequently affirmed the arbitrator’s award stating only that it was “reasonable for the work required of plaintiff’s attorney in seeking payment under the No-fault Act.” (Slip op. of 7/12/88 at 2.) However, uncontested evidence presented at the October 5, 1987 hearing indicated that in order to pursue his client’s claims, Attorney Feingold worked fifteen (15) hours at a rate of one hundred dollars ($100.00) per hour plus an additional term of hours at one hundred fifty dollars ($150.00) per hour. N.T. 10/5/87 at 22-29. Appellant also introduced uncontested evidence that she had sustained costs well in excess of the $37.50 granted to her. Id. at 28-29. Under the circumstances presented here, we find that it was an abuse of discretion to award appellant only $287.50 in costs and attorney’s fees.

We note that the purpose of the No Fault Insurance system was to provide “basic loss benefits for motor vehicle accident victims____” 40 P.S. § 1009.102(b); Metzel v. State Farm, 389 Pa.Super. 30, 33, 566 A.2d 600, 602 (1989). We agree with appellant that in the absence of a mandate from the legislature, it would be unfair to negate a victim’s right to secure the recovery of benefits owed to her under the No-Fault Act by applying a rigid cap on attorney fees based on the size of the claim rather than on the amount of work reasonably necessary to successfully resolve the problem. Moreover, in § 1009.107(1), the legislature has clearly directed that no part of a claimant’s benefits are to be used to pay necessary attorney fees associated with the attempt to collect benefits owed under a policy of No Fault Insurance. See § 1009.107(1), supra.

The determination of appropriate counsel fees and costs is best handled by the trial court. See Gossman v. Lower Chanceford Twp., 503 Pa. 392, 469 A.2d 996 (1983); Pa.R. A.P., Rule 2744, 42 Pa.C.S.A. (explicating basis on which appellate courts may award attorney fees and costs). See also Danks v. Government Employees Insurance Co., supra (remanded so lower court could ascertain attorney fees). We therefore vacate the judgment entered September 14, 1989 and remand to the trial court so that it may determine: (1) the amount of allowable costs which appellant is justifiably entitled to receive; (2) the amount of time actually expended by counsel pursuing appellant’s claims against appellee; (3) the reasonableness of the hourly fee charged; and (4) the amount of time appropriately spent by counsel to achieve a resolution of appellant’s claims.

Reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . We are cognizant of appellee’s argument that this is an appeal from a grant of summary judgment rather than an appeal from an order confirming an arbitration award. However, the certified record does not contain copies of the cross-motions for summary judgment described in appellee’s brief. Nor are there docket entries to support appellee’s contentions regarding the posture of the case.
      As appellee points out, counsel for Fidelity argued before the lower court that Ms. Ward had filed a motion for summary judgment. N.T. 10/5/87 at 30. Counsel for appellant did not, however, agree with appellee’s assertion. Id. The transcript clearly indicates that although Fidelity’s counsel insisted that the purpose of the October 5th hearing was to settle a motion for summary judgment, counsel for Ms. Ward was equally insistent that this was an incorrect description of the matter before the trial judge. Appellant’s counsel attempted several times to move the presentation along to a discussion of the substantive matters he wished to present, but appellee’s counsel continually raised procedural matters. Finally, the following exchange occurred:
      (By counsel for Fidelity): I think we are talking about the same thing, but it’s still my understanding that procedurally the context is a motion by summary judgment on your behalf.
      (By counsel for Ms. Ware): Whatever.

        Id. at 32. When the above remarks are considered in their full context, it is readily apparent that appellant’s counsel did not agree to appellee’s characterization of the posture of this case. Rather, he was simply attempting to move the discussion of the issues forward.

      . See appellant’s reply brief at 1. The procedure followed by appellant in reducing her award to a judgment and the precedent cited in her brief indicate appellant’s belief that the Uniform Arbitration Act governs this appeal. Appellee has not in any meaningful way challenged appellant’s assertions in this regard, or the necessary legal implications that flow therefrom. Appellee has simply mischaracterized the procedural posture of the instant case as an appeal from a motion for summary judgment. We should not need to remind counsel for both parties that the better practice is to clearly identify the type of arbitration underlying an appeal.

      . Act of July 19, 1974, P.L. 489, P.L. 489, No. 176, Art. 1, Sec. 101, et seq., 40 P.S. Sec. 1009.101, et seq., repealed, Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. At the time of the automobile accident underlying the instant appeal, appellant's insurance claims were governed by the currently repealed No Fault Act.


author: MONTEMURO, Judge:

text:
    577 A.2d 907
    Teresa L. WILLIAMS and Gordon N. Williams, Appellants, v. F.L. SMITHE MACHINE COMPANY, INC. and John J. Adams Die Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed July 23, 1990.

      Robin Thornburg, Asst. Dist. Atty., Pottsville, for appellants.
    James C. Munro, II, Johnstown, for F.L. Smithe, appellee.
    Katherene E. Holtzinger-Conner, York, for John J. Adams, appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

The appellants, Theresa L. Williams and Gordon N. Williams, have filed an appeal following the dismissal of their action by the Court of Common Pleas of Schuylkill County on December 22, 1989. Following a review of the record before us, we find that the trial court erred in construing 42 Pa. C.S.A. § 5103, and, accordingly, we reverse.

The facts underlying the present appeal are not in dispute. In September of 1986, appellant Theresa Williams was injured while operating a power press which had been sold to Theresa Williams’ employer by appellee F.L. Smithe Machine Company, Inc. Appellee John J. Adams Die Corporation had apparently manufactured certain component parts of the power press. On September 19, 1988, within the applicable statute of limitations, appellants filed suit in the United States District Court for the Middle District of Pennsylvania. Jurisdiction was never proper in the federal court, however, because appellants are citizens of Pennsylvania and F.L. Smithe Machine Company, Inc., is a Pennsylvania corporation, thus preventing the exercise of diversity jurisdiction by the federal court. When F.L. Smithe filed a motion to dismiss the action in the federal court for lack of diversity of citizenship, appellants did not oppose the motion. The federal court granted the motion to dismiss for lack of subject matter jurisdiction on March 16, 1989.

Shortly thereafter, on March 30, 1989, appellants filed a new complaint, identical to the complaint filed in federal court, in the Court of Common Pleas of Schuylkill County. Attached to the complaint were certified copies of the federal court docket and the March 16, 1989, Order of the federal court dismissing the action for lack of jurisdiction. Approximately one month later, on April 24, 1989, appellants filed copies of the pleadings which had been filed in the federal court action. Later, in October of 1989, appellants filed certified copies of the federal pleadings in the Schuylkill County Court of Common Pleas. In response to a motion to dismiss, the trial court determined that because the federal court had dismissed the action and closed the file, as opposed to transferring the action to a state court, appellants were required to institute a new action in state court, because “... there was no case to transfer to our Court.” Op. of Trial Court, December 22, 1989, at 22. However, by March of 1989, when the appellants filed their initial pleading in the Schuylkill County Court of Common Pleas, the statute of limitations had run. Thus, the trial court found appellants’ action against appellees to be time barred, and dismissed their complaint.

We must construe the following statutory enactment in order to reach a decision in the case sub judice:

42 Pa. C.S.A. § 5103(a) and (b).
(a) General Rule.—If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or district justice of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal.
(b) Federal cases.
(1) Subsection (a) shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth. In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court or before a district justice of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States Court, but the transferee court or district justice may required that they be amended to conform to the practice in this Commonwealth. Section 5535(a)(2)(i) (relating to termination of prior matter) shall not be applicable to a matter transferred under this subsection.

It is evident from the clear and unambiguous language of 42 Pa. C.S.A. § 5103(a) and (b), that if a matter is originally filed within the statute of limitations in the federal court, but is dismissed for lack of jurisdiction by the federal court, the litigant may then effect a transfer of the action to state court by complying with the provisions set forth in 42 Pa. C.S.A. § 5103(b)(2). The state court will treat the matter as if originally filed in the state court if the litigant complies with the dictates of 42 Pa. C.S.A. § 5103(b)(2). Thus, in the present case, if appellants complied with 42 Pa. C.S.A. § 5103(b)(2), the trial court must deem their action as filed on the date it was first filed in the federal court, September 19, 1988, and thus within the applicable statute of limitations.

It is also clear from a reading of 42 Pa. C.S.A. § 5103 that, in order for the statute to apply to prevent a litigant from losing the opportunity to litigate his case on the merits simply because he is in error regarding federal jurisdiction, it is not necessary that the federal court transfer the case or take other action following the determination that federal jurisdiction is absent. All that is required is an order entered by the federal court dismissing the matter for lack of jurisdiction. It is then incumbent upon the litigant to take further action under the statute to move the case to state court.

Appellees argue that we should affirm the dismissal of appellants’ action, as appellants did not file a certified copy of the pleadings from the federal action until October 18, 1989. We are cognizant of the fact that 42 Pa.C.S.A. § 5103(b)(2) requires that a litigant effect a transfer to state court by “... filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth.” See 42 Pa. C.S.A. § 5103(b)(2). As the trial court notes, appellants did file a certified copy of the final order of the federal court, dismissing their case, but the appellants mistakenly filed a new, although identical, complaint in state court. Later, appellants realized “that is was not necessary to file a new complaint with a Schuylkill County caption, but merely to file copies of the original District Court complaint and subsequent pleadings, and on April 24, 1989, plaintiffs filed true and correct copies of the District Court pleadings. The April 24, 1989 pleadings were true and correct copies of the record documents but were not certified copies of the original pleading[s], and on October 18, 1989, plaintiffs, realizing their error, filed certified copies of the original pleadings.” Op. of Trial Court, December 22, 1989, at 2.

Given the dearth of case law interpreting the provisions of 42 Pa. C.S.A. § 5103, appellants’ initial partial compliance with the statute’s requirements, and eventual complete compliance, we do not believe that appellants should suffer the harsh result of dismissal of their cause of action. However, for benefit of both bench and bar, we now emphasize that in order to protect the timeliness of an action under 42 Pa. C.S.A. § 5103, a litigant, upon having his case dismissed in federal court for lack of jurisdiction, must promptly file a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action. The litigant shall not file new pleadings in state court.

For all of the foregoing reasons, we reverse the order dismissing appellants’ action and remand for further proceedings. Jurisdiction is relinquished.

      . We note with some concern that 42 Pa. C.S.A. § 5103 does not require a litigant to take action to transfer the case from federal court to state court within any particular time from the date the action is dismissed by order of the federal court. In the case at bar, appellants moved promptly to have their case heard in state court. We are hopeful, however, that our Legislature will see fit in the future to include a time requirement in the provisions of 42 Pa. C.S.A. § 5103.


text:
    577 A.2d 910
    Henry C. BARCHFELD and Laverne A. Barchfeld, Husband and Wife, Appellee, v. Sandra Ellen NUNLEY by Her Guardian Ad Litem, Spencer J. NUNLEY, Appellant. Henry C. Barchfeld, Appellee.
    Superior Court of Pennsylvania.
    Argued April 5, 1990.
    Filed July 20, 1990.

      James David Elder, Pittsburgh, for appellant.
    Paul R. Giba, Pittsburgh, for appellees, Barchfeld.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

The sole issue before us is whether in an action filed by a husband and wife for personal injuries sustained by the husband plaintiff, where a loss of consortium claim has been filed by the wife in the same action, it is permissible and proper to join the husband as an additional defendant pursuant to Rule 2252(d) on the wife’s claim for loss of consortium. We hold that it is not permissible and affirm the trial court’s sustaining of husband’s preliminary objections to his joinder as an additional defendant.

Henry and Laverne Barchfeld, plaintiff/appellees, filed a personal injury action against Saundra Nunley, the defendant/appellant, after Henry was struck by an automobile driven by her at approximately 9:30 p.m. while crossing an intersection in the township of Upper St. Clair. Henry Barchfeld claims that Ms. Nunley was negligent in the operation of her vehicle which caused him to sustain severe injuries and damages. Mrs. Barchfeld, who was not present at the time of the accident, filed a claim for damages resulting from the loss of her husband’s support, aid comfort, assistance, companionship and consortium.

Relying on Manzitti v. Amsler, 379 Pa.Super. 454, 550 A.2d 537 (1988), Appellant, who was the original defendant, contends that Mrs. Barchfeld’s claim for loss of consortium is “distinct” and “independent” from that of her husband since it does not depend upon Mr. Barchfeld’s claim to remain viable, and, if her claim is independent, then joinder of Mr. Barchfeld is proper and required. Appellant completely denies liability for the injuries to Mr. Barchfeld. Alternatively, she argues that if she is found to be partially responsible for the injuries to Mr. Barchfeld, and, therefore, jointly liable with Mr. Barchfeld on Mrs. Barchfeld’s claim, she has a right to join him as an additional defendant and seek contribution from him. We examine Manzitti to determine whether joining Mr. Barchfeld is proper and required.

In Manzitti, the appellants filed a medical malpractice action against the Appellees, Dr. Amsler and the hospital, for injuries arising out of an operation performed by the doctor. Mr. Manzitti’s injuries included severed spinal nerves, permanent loss of the bowel and bladder control, and sexual impotency. Appellant, Mrs. Manzitti, jointly filed a claim for loss of her husband’s consortium. Appellees’ insurer negotiated a settlement directly with the Appellants’ attorney and offered $150,000 to settle both of the appellants’ claims. Appellants’ attorney indicated to Appellees’ insurer that he had the authority to settle the case and accepted the offer on behalf of both the Appellants. However, when Appellees tendered the settlement draft to Appellants, they informed the Appellees that they did not authorize the settlement and intended to nullify the oral settlement.

Appellants, with the assistance of new counsel, filed a motion for continuance and removal of the case from the trial list. Appellants alternatively alleged that Mrs. Manzitti never authorized the settlement with respect to her case for any price, the settlement offer of $150,000 was not for Mr. Manzitti’s case alone, and Mr. Manzitti authorized the settlement of $150,000 only for his case since his attorney led him to believe that the most hé could obtain from a jury verdict was $200,000. The case was removed from the trial list and the Appellees petitioned to enforce the settlement. The trial court decided that Mr. Manzitti had authorized the settlement of his personal injury claim, but the court refused to hear evidence on whether the attorney had the authority of Mrs. Manzitti to settle her case prior to accepting Appellees’ offer. The trial court found that the settlement of Mr. Manzitti’s claim extinguished the right of Mrs. Manzitti to proceed with her cause of action because her loss of consortium claim was derivative of her husband’s personal injury claim. The trial court ordered Appellants to comply with the settlement and they appealed.

On review, our court noted that an action for loss of consortium is derivative of the injured spouse’s claim. ■ Winner v. Oakland Township, 158 Pa. 405, 27 A.2d 1110 (1893); Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 495 A.2d 552 (1985). The Scattaregia court held:

The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages-direct and indirect-suffered as a result of the principal plaintiff’s injury. Viewed in this light, it makes little sense to hold that an injured party’s negligence would bar or limit his recovery for direct injury, but would not affect his spouse’s recovery for indirect injury.
The consortium plaintiff ... has suffered no direct injury ... [His/Her] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his/her] spouse. Scattaregia, 343 Pa.Super. at 455-456, 495 A.2d at 553-554 (quoting Maidman v. Stagg, 82 A.D.2d 299, 304, 441 N.Y.S.2d 711, 715 (1981)).

However, in Manzitti we held that a loss of consortium claim is a separate and distinct cause of action, although derivative, from the injured spouse’s claim. Therefore, settlement of the injured spouse’s claim does not extinguish the rights of the party claiming loss of consortium. This holding is supported by several cases in which the injured spouse’s claim was settled.

For instance, in Buttermore v. Aliquippa Hospital, 368 Pa.Super. 49, 533 A.2d 481 (1987), aff’d in part and rev’d in part on other grounds, 522 Pa. 325, 561 A.2d 733 (1989), we held that since Mrs. Buttermore was never a party to the release signed by her husband, her right to proceed on her loss of consortium claim had not been foreclosed. Similarly, in Kowal v. Commonwealth Department of Transportation, 100 Pa.Cmwlth. 593, 515 A.2d 116 (1986), the husband settled his personal injury claim against the Commonwealth but the wife did not expressly settle her loss of consortium claim. The court made the following statement regarding her claim:

a loss of consortium claim is derivative since it arises from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities. This does not, however, alter the uninjured spouse’s status as a plaintiff in her own right since her damages, although derivative, are personal to her. Id., 100 Pa.Cmwlth. at 597, 515 A.2d at 119.

Manzitti, at 550 A.2d 540. See also Rosander v. Copco Steel and Engineering Co, 429 N.E.2d 990 (Ind.App.1982); Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (1984).

We recognized in Scattaregia and Manzitti that a loss of consortium claim is a derivative of the personal injury claim, but, at the same time, it is separate and distinct from the spouse’s personal injury claim. A loss of consortium claim is separate and independent from the personal injury claim where the injured spouse has settled the case or for some reason the merits of the directly injured spouse’s claim have not been reached as in Manzitti, Buttermore, and Kowal. This will protect the loss of consortium claimant’s right to recover for the indirect injury sustained by him or her where the injured spouse’s claim has been disposed of. We do not extend Manzitti to cover the fact situation in the instant case.

In Scattaregia v. Shin Shen Wu, supra, appellant’s instituted an action in trespass for injuries sustained by the wife and for the husband’s loss of consortium due to the malpractice of the appellee physicians. Evidence was introduced regarding the wife’s contributory negligence and the trial court charged the jury on comparative negligence. The jury found the wife to be 49% negligent and each appellee to be 25.5% negligent. Since Pennsylvania’s comparative negligence statute mandates that a plaintiff’s damages be reduced by his negligence, the wife was awarded 51% of her damages. On appeal, the issue was whether a spouse’s damages for loss of consortium should be reduced by the percentage of comparative negligence attributable to the injured spouse. Concluding that a loss of consortium claim is derivative, we stated:

... [i]ts success in this Commonwealth has always been dependent upon the injured spouse’s right to recover____ Logically extending previous case law to actions affected by the comparative negligence reduces the spouse’s damages in proportion to that negligence, the damages awarded the uninjured spouse for loss of consortium must likewise be proportionally reduced. A contrary result would be inconsistent with the derivative nature of the loss of consortium action. Scattaregia, 343 Pa.Super. 456, 495 A.2d 554 (1985).

In the case before us, the loss of consortium claim is derivative of the injured spouse’s personal injury claim. Appellant alleges that Mr. Barchfeld is partially, if not totally, responsible for his injuries. If Mr. Barchfeld was negligent, his comparative negligence will reduce his damages in proportion to that negligence. Likewise, Mrs. Barchfeld’s loss of consortium damages will also be diminished in proportion to her husband’s comparative fault. Because Appellant will only be liable for the percentage of negligence attributed to her, joinder of Mr. Barchfeld is unnecessary where, as here, he is a party plaintiff pursuing his own claim.

Accordingly, we affirm.