author: SPAETH, Judge:

text:
    457 A.2d 1291
    Teresa MILLSTEIN v. David M. MILLSTEIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed March 11, 1983.

      Mindy M. Brook, Langhorne, for appellant.
    Samuel M. Snipes, Yardley, for appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a petition to reduce a child support order and remit arrearages. Before the child support order was entered, appellant agreed, as part of a separation agreement, to pay child support of $120 per week. This agreement was then entered in the form of a child support order. In his petition to reduce, appellant pleaded that because of changed circumstances he could no longer afford to pay $120 per week. The lower court held that under Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), appellant was bound by the separation agreement. We affirm.

Appellant argues (1) that because his petition was to reduce a child support order, the lower court did not have subject matter jurisdiction to consider the separation agreement; and (2) that the separation agreement did not preclude him from proving changed circumstances, thereby fixing an amount beneath which his support obligation could not go.

On January 14, 1980, the parties entered into a separation agreement. By Article IX of the agreement appellant promised to pay. $120 per week for the support of his daughter, “and the foregoing sum of $120.00 per week shall be entered in the form of a Court Order .... Said support shall continue so long as the child is living, unmarried and under the age of eighteen years or otherwise unemancipated.” Article XXVIII provided that “each paragraph hereof shall be deemed to be a separate and undisputed covenant and agreement____” Article XXV provided that “[n]o modification or waiver of this Agreement or of any part thereof shall be valid or effective unless in writing signed by the party sought to be charged therewith____” And Article II provided that “[t]his Agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted, and represented by ‘HUSBAND’ and ‘WIFE,’ each to the other, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the specific purpose of inducing ‘HUSBAND’ and ‘WIFE’ to execute the Agreement.”

On January 28, 1980, the amount of $120 per week for child support was entered as a court order, as provided in the separation agreement. On June 30, 1980, the parties were divorced. Appellant paid the agreed amount of $120 per week for child support until September 1981. In November 1981 he filed a petition to reduce the support order of January 28, 1980, and to remit arrearages, alleging that on September 11, 1981, his employer had gone into bankruptcy and he had lost his job and was unable to pay the $120 per week child support. After a hearing on March 18, 1982, the lower court dismissed the petition to reduce and directed that the arrearages be remitted at the rate of $20 per week until paid in full. In the opinion accompanying its order the lower court found that appellant had lost his job and had gotten a new, lower-paying, job. However, the court made no findings on whether, if the parties had not entered into the separation agreement, appellant’s change of circumstances would have entitled him to a reduction in his child support obligation. Instead, the court held that the issue was “whether [it had] the power to modify or alter Article IX” of the separation agreement, Slip op. at 5, and that under Brown v. Hall, supra, it did not.

1

In support of his argument that the lower court did not have subject matter jurisdiction to consider the separation agreement, appellant relies on Guerin v. Guerin, 296 Pa. Super. 400, 442 A.2d 1112 (1982). We have concluded, however, that Guerin is distinguishable. In explaining this conclusion, it will be convenient first to state Brown v. Hall, supra, and then return to Guerin.

In Brown, the facts were as follows. Early in 1972, Mrs. Hall instituted a support proceeding against her husband for herself and their two children. In July 1972 the lower court ordered Mr. Hall to pay $105 per week in support. In October 1973 the parties entered into a separation agreement in which Mr. Hall agreed to pay $105 per week support for his wife and children, and upon the parties’ divorce, $90 per week child support. In January 1974 the parties were divorced, and Mrs. Hall remarried and became Mrs. Brown. Mr. Hall began making the $90 payments; upon the parties’ stipulation, the lower court modified its July 1972 support accordingly. Mr. Hall soon fell behind in his payments. After a contempt hearing and other proceedings, the lower court reduced its order to $65 per week child support. On appeal, this court affirmed, in October 1978, and the Supreme Court granted allocatur. Meanwhile, in December 1976, Mrs. Brown had commenced an action in equity seeking specific performance of the parties’ October 1973 separation agreement. In July 1977 the chancellor ordered specific performance, holding that the separation agreement was binding on Mr. Hall and that the $90 per week child support he had promised to pay could not be reduced by later court order. Mr. Hall appealed the chancellor’s decree to the Supreme Court, and the Court consolidated his appeal with Mrs. Brown’s appeal from our order affirming the lower court’s order reducing its support order to $65 per week.

First the Court considered Mr. Hall’s appeal and affirmed the chancellor’s decree. The Court reasoned:

We concur with the principle that parties to a divorce cannot restrict the court’s power to modify a support order as facts, circumstances, and justice may require. But where, as here, a property settlement agreement has not been merged into the decree, the principle in no way affects the parties’ continuing liability between themselves for separate contractual obligations .... The record here supports the finding that the parties intended the separation agreement to create contractual rights and obligations entirely independent of the already existing court order.
Id. 495 Pa. at 642, 435 A.2d at 862 (emphasis in original, footnote omitted).

Quoting the chancellor, the Court said:

A holding to the contrary would serve to illegitimize future separation agreements and encourage a party to promise anything to obtain a divorce, knowing he will never be bound by it, even when the promise is in writing and for valid consideration. Needless to say, such a holding would also serve to shake the very foundation of contract law and the sanctity of a bargain made between parties dealing at arm’s length.
Id., 495 Pa. at 643-44, 435 A.2d at 863 (quoting Brown v. Hall, 27 Cumb.L.J. 340, 349-50 (1977)).

Next the Court considered Mrs. Brown’s appeal from the reduced support order. Said the Court: “Because the independent separation agreement here provides for child support in an amount greater than the challenged support order,” the challenged support order was vacated.

The decision in Brown is of considerable importance. Prior to Brown there was language in the cases that in a support proceeding, “[the court] was privileged to disregard the [separation] agreement although an order had been entered pursuant to it.” Commonwealth ex rel. Balph v. Balph, 210 Pa.Super. 244, 248-49, 232 A.2d 76, 78 (1967). And see Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965); Commonwealth ex rel. Voltz v. Voltz, 168 Pa.Super. 51, 76 A.2d 464 (1950). To be sure, when closely read, such cases did not stand for so broad a proposition. Thus, Balph, Snively, and Voltz each involved an increase in the amount of child support, not a reduction. Accurately stated, therefore, they stand only for the proposition that if a court finds that because of changed circumstances a child needs more support than the parent has agreed to pay, the parent may not preclude an order requiring him to pay more support by pleading a separation agreement providing for a smaller payment. However, the cases were not always accurately stated, and in Brown, Mr. Hall argued that the chancellor had erred in holding him bound by his promise in the separation agreement to pay $90 child support. In making his argument, he relied on the general proposition that in a support proceeding, the court could disregard a separation agreement between the parties. Since, he said, his circumstances had changed—he had lost his original job—the chancellor should have disregarded the separation agreement and reduced his obligation to pay child support to accord with his new, lower-paying, job. Mr. Hall particularly relied on Bria v. Bria, 95 Dauph. 358 (1973), aff'd per curiam, 464 Pa. 247, 346 A.2d 542 (1975), where the chancellor had refused to grant specific performance of a provision in a separation agreement obligating the father to pay $43 per week child support on the ground that $31 per week, ordered by the support court, was adequate and appropriate. The importance of Brown is that it rejected this argument, distinguishing Bria and limiting it so closely to its particular facts that one must doubt whether it retains any precedential value. In Bria, the Court said, “the uncounseled husband thought he was required to sign the onerous agreement prepared by his wife’s attorney in order to obtain a divorce,” whereas in Brown, the agreement was not one-sided and both parties were represented by counsel. 495 Pa. at 643, 435 A.2d at 863. Furthermore, said the Court, in Bria the agreement was entered into before the support order, so that the chancellor “might have found that the wife was in effect repudiating [the agreement] by seeking the court’s order of support,” whereas in Brown, the agreement was entered into after the support order. Id. And finally, said the Court, in Bria, there was an issue of adequacy of support, whereas in Brown, “no one argues that $90 per week is inadequate to support the children.” Id. (emphasis in original). With respect to this last proposition, the Court cited Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 89, 53 A.2d 887, 888 (1947), quoting Commonwealth ex rel. Snively v. Snively, supra, as authority that a parent cannot “bargain away the right of [a] minor child to adequate support.”

With Brown decided, therefore, the relationship between a child support order and a separation agreement providing for child support became clear. A separation agreement will not preclude a court from increasing a parent’s child support obligation beyond the amount provided in the agreement. But the agreement may preclude a parent from decreasing his (or her) child support obligation to an amount less than the amount provided in the agreement.

We may now return to Guerin v. Guerin, supra, where the facts were as follows. In July 1974 a child support order was entered, with the agreement of the parties, providing that Mr. Guerin should pay support of $160 per week. In November 1974 the parties were divorced. In December 1974 they entered into an agreement providing that Mr. Guerin should pay child support of $160 per week. In February 1975 Mr. Guerin filed a petition to reduce the support order of July 1974, alleging changed circumstances, and in response, the lower court reduced the order to $125 per week. Mrs. Guerin did not appeal this action but instead brought an action in assumpsit to enforce the December 1974 agreement for $160 per week. The lower court granted Mr. Guerin’s motion for nonsuit and dismissed the action, and Mrs. Guerin appealed to this court. Holding that the case was “essentially similar” to Brown v. Hall, supra, we reversed, ordered the nonsuit removed, and remanded for further proceedings. Id. 296 Pa.Super. at 403, 442 A.2d at 1113.

Guerin thus supports not appellant but appellee. For in Guerin we held, relying on Brown, that the father could not escape his promise to pay an agreed amount of child support by proving a change in circumstances. Brown, we said, “compels the conclusion that the private support agreement here is enforceable.” Id., 296 Pa.Superior at 403, 442 A.2d at 1113. Similarly, the lower court here held that appellant could not escape his promise to pay an agreed amount of child support. However, in the course of reaching our decision in Guerin, we made a remark that appellant has fastened upon as authority for his argument that the lower court did not have subject matter jurisdiction to consider the separation agreement containing his promise to pay an agreed amount of child support.

As we have mentioned, Mrs. Guerin did not appeal the order reducing Mr. Guerin’s support obligation, instead suing Mr. Guerin in assumpsit on his agreement. The question therefore arose whether the unappealed order reducing support was res judicata in the assumpsit action. We said that “[the] order lowering court-ordered support was not res judicata of the issue of enforceability of the private agreement, because that issue could not be raised before Judge ROSENBERG [the judge who had entered the order reducing support].” Id., 296 Pa.Superior at 403, 442 A.2d 1113. On the strength of this statement, appellant argues that here appellee could not raise before Judge MIMS, sitting in the support court, the fact that he had entered into a separation agreement, in other words, that appellee could not plead before Judge MIMS that she should not reduce the child support order of $120 per week because in the separation agreement appellant had promised to pay that amount. This argument has no merit.

In the first place, appellant’s argument overlooks the state of the law as it was when Mr. and Mrs. Guerin were involved in their litigation. When the lower court in Guerin dismissed Mrs. Guerin’s action in assumpsit to enforce Mr. Guerin’s agreement to pay child support of $150 per week, it relied on “the proposition that a court may refuse to enforce a private support agreement if a party has a change of circumstances resulting from factors beyond his control.” Id., 296 Pa.Superior at 402, 442 A.2d 1113. Accordingly, the lower court reasoned, Judge ROSENBERG was empowered to reduce Mr. Guerin’s support obligation to $125 per week, despite his agreement to pay $160 per week. As authority for this conclusion, the lower court relied upon Bria v. Bria, supra; Commonwealth ex rel. Balph v. Balph, supra; and Commonwealth ex rel. Snively v. Snively, supra. Since Brown v. Hall, supra, we know that the lower court was in error: As we have discussed, Bria, Balph, and Snively do not stand for the broad proposition that a support court is free to disregard a separation agreement and, on proof of a change in circumstances, order a reduction in a parent’s support obligation to an amount smaller than the parent has promised in the separation agreement to pay. However, when Mrs. Guerin was before the support court, Brown had not been decided. Our statement that “that issue could not be raised before Judge ROSENBERG [the judge in the support court]” must be read in light of that fact. ' It only says that since Brown had not been decided, Mrs. Guerin could not plead Brown when she was in the' support court. It is therefore no authority for appellant’s argument that when appellee was in the support court, she could not plead Brown.

In the second place, to accept appellant’s argument would lead to an absurd result. Brown has established that appellant’s promise in the separation agreement to pay child support of $120 per week is enforceable. It would make no sense to hold that Judge MIMS, sitting in the support court, should act as though Brown were not the law, in other words, that she should order a reduction in appellant’s support obligation because of appellant’s changed circumstances, despite the fact that appellee could then bring an action, either in assumpsit or fpr specific performance, on the separation agreement and have the reduction order vacated. Nothing in Guerin suggests that litigants and the lower courts are obliged to proceed in so circuitous, and therefore so slow and expensive, a manner.

Appellant also relies upon Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974), in support of his argument that the lower court did not have subject matter jurisdiction to consider the separation agreement. The proceeding in Roviello was in contempt. When Mr. and Mrs. Roviello appeared before the lower court on Mrs. Roviello’s action for support, the court attempted to reach an amicable settlement. The parties then, at the hearing, agreed upon a property settlement, which was reduced to writing, and the court included the terms of the settlement agreement in its order of support. One of these terms was that Mr. Roviello would convey certain property to Mrs. Roviello. When he refused to convey the property, the lower court held him in contempt of its order. Reversing, we said that “[t]his court has often noted that a proceeding for support cannot be used for the purpose of securing a wife’s share of her husband’s estate or for the purpose of recovering property to which she might otherwise be entitled.” Id., 229 Pa.Superior at 436, 323 A.2d at 771. Also, we said, “[W]e are not concerned with the validity of the written [settlement] agreement between the parties. The proper determination of the status of this document is in an action for specific performance before a court of equity.” Id., 229 Pa.Superior at 434, 323 A.2d at 770 (footnote omitted).

This language is not to be interpreted, as appellant suggests, to mean that a support court lacks subject matter jurisdiction to consider the terms of a private support agreement. By petitioning the lower court for an adjudication of contempt, Mrs. Roviello asked the court to rule on the strength of its order, not on the basis of the parties’ agreement. The difficulty was that the order directed, not the payment of support, which would have been an order appropriate to the support court, but the conveyance of marital property, which was not appropriate. Roviello thus presents no obstacle to our conclusion that where, as here, one of the parties does ask the court to act on the basis of a private agreement, and the provision of the agreement relied upon does require the payment of support, the support court may consider the agreement in reaching its decision.

We are especially persuaded to this conclusion by Brown v. Hall, supra, where, as we have discussed, the Supreme Court consolidated a support action with an action upon a private agreement, and, having held the agreement enforceable, vacated the order entered in the support action. The course that litigation follows will depend upon choices made by the parties. It may happen that the party who has been promised support in a separation agreement may bring an action for specific enforcement of the agreement. Brown v. Hall, supra; Guerin v. Guerin, supra; Commonwealth ex rel. Roviello v. Roviello, supra. But it may also happen that the party obligated to pay the support will take the initiative by filing a petition to reduce and remit arrearages. Nothing should turn on which party acts first. The party obligated by the separation agreement to pay support should not be permitted to avoid the principle established in Brown v. Hall, supra—in other words, should not be permitted to escape his support obligation as provided in the separation agreement—by beating the other party “to the punch,” and filing a petition to reduce and remit before the party owed support files an action for specific performance.

2

Appellant next argues that in any case, the lower court “erred in its interpretation of Brown v. Hall and its application of Brown to the facts of this case.” Brief for Appellant at 15. In particular, appellant argues that the separation agreement entered into by him and appellee is distinguishable from the agreement specifically enforced in Brown in that it was entered into before a support order was entered and therefore “merged” into the support order and ceased to be an independent source of obligation.

We agree that Brown does imply that a separation agreement that has merged into an order will not be given effect. Id. 495 Pa. at 642, 435 A.2d at 862 (“[W]here ...' a property settlement agreement has not been merged into the [divorce] decree, the principle in no way affects the parties’ continuing liability between themselves for separate contractual obligations.” (Emphasis in original.) We are satisfied, however, that here the parties’ separation agreement did not merge into the support order, and that it therefore continued to be an independent source of obligation.

It is true that Article IX of the separation agreement contemplated that appellant’s child support obligation, as provided in the agreement, would be entered in the form of a court order. It does not follow, however, that once the order was entered, the separation agreement merged into it. Whether merger occurred depended upon the parties’ intent, and here it is clear that the parties’ intent was that merger should not occur. Under the separation agreement, appellant’s obligation to pay child support is a “separate and independent covenant,” Article XXVIII, which can be modified only with appellee’s written agreement, Article XXV, and which is to “remain in full force and effect regardless of any change in the marital status of the parties,” Article II.

We therefore conclude that the lower court did not err in its interpretation and application of Brown v. Hall, supra. To the contrary, in every important respect we find Brown indistinguishable from this case. As in Brown, the separation agreement here is a detailed agreement “covering all aspects of the economic relationships of the parties.” Id., 495 Pa. at 643, 435 A.2d at 863. Also as in Brown, there is no suggestion that the separation agreement is one-sided, or that in entering into it, appellant was uncounseled, or that the $120 per week in child support provided in the separation agreement is inadequate. The lower court therefore correctly held that appellant could not, by filing a petition to reduce support and remit arrearages, escape his obligation under the separation agreement.

Affirmed.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    457 A.2d 1297
    COMMONWEALTH of Pennsylvania v. David R. VOGELSONG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1982.
    Filed March 11, 1983.

      Michael R. Rundle, Carlisle, for appellant.
    Carl A. Ammerman, Mechanicsburg, for participating party-
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

David R. Yogelsong has become totally disabled since he was ordered to pay $150 per week for the support of a wife and child. He appeals from the trial court’s order refusing, nevertheless, to modify the support order and remit arrearages. We reverse.

The initial order of support was entered following a hearing on April 29, 1975, at a time when appellant owned, managed and was actively engaged in a water conditioning business in Cumberland County. On June 17, 1975, appellant was declared permanently and totally disabled by the Social Security Administration because of arteriosclerotic coronary disease and diabetes mellitus. Both conditions have become more acute as time has passed, and appellant has not been gainfully employed since June, 1975. On August 5, 1975, appellant responded to a contempt petition which prompted the court, after hearing, to make the following disposition:

We were going to end the Order because of his disability but the prosecution has made a note of the feasible assets, that aren’t feasible to the Court. I’m going to let the arrearages accrue and we can enter judgment on the arrearages any time and proceed against any assets we can find. Go ahead and issue execution, but, with his health, I can’t enforce an Order. I can’t put him in jail and he has no income as far as I can see. So, I’m going to continue the hearing and allow the arrearages to accrue.

On January 3, 1980, the appellee, Jane Vogelsong, caused judgment to be entered against appellant for arrearages in the amount of $34,200. The judgment was procedurally defective, however, and was subsequently stricken. Appellant then petitioned the court to modify the order, both prospectively and retroactively, and to remit all arrearages in excess of social security payments which had been paid directly to the appellee. A hearing was held, and the court entered an order as follows:

AND NOW, this 15th day of October, 1981, for the reasons appearing in the opinion filed this date, the petitioner’s motion to remit arrears is hereby sustained in part in that the amount of $15,585.80 shall be credited against support arrears through December, 1979; it is further ordered that the amount of social security payments received by respondent and her daughter be credited against support arrears accruing since January, 1980 and against future accruing arrears. In all other respects, the petitioner’s motion to remit support arrearages is refused and dismissed.

It is from this order that the present appeal was filed.

A support order is not final and may be increased or decreased where the financial circumstances of the parties change. Costello v. LeNoir, 462 Pa. 36, 42 n. 8, 337 A.2d 866, 869 n. 8 (1975); Dunbar v. Dunbar, 291 Pa.Super. 224, 228, 435 A.2d 879, 881 (1981); Commonwealth ex rel. Jeske v. Jeske, 283 Pa.Super. 209, 211, 423 A.2d 1063, 1063-1064 (1981); Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa.Super. 163, 165, 280 A.2d 456, 457 (1971). In proceedings to modify a support order, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Shank v. Shank, 298 Pa.Super. 459, 462, 444 A.2d 1274, 1276 (1982); Commonwealth ex rel. Stone v. Stone, 293 Pa.Super. 427, 429, 439 A.2d 185, 186 (1981); Commonwealth ex rel. Kistler v. Kistler, 291 Pa.Super. 51, 55, 435 A.2d 214, 216 (1981); Berry v. Berry, 278 Pa.Super. 30, 33, 419 A.2d 1340, 1341 (1980); Dugery v. Dugery, 276 Pa.Super. 51, 54, 419 A.2d 90, 91 (1980).

On appeal from an order of support, our scope of review is narrow. An order of the hearing court will not be reversed unless the evidence was insufficient to sustain the order or there has been an abuse of discretion. Shank v. Shank, supra, 298 Pa.Super. at 462, 444 A.2d at 1276; Commonwealth ex rel. Kunkin v. Bruck, 297 Pa.Super. 410, 415, 443 A.2d 1187, 1190 (1982); Turner v. Matthews, 297 Pa.Super. 10, 11-12, 442 A.2d 1187, 1188 (1982); Commonwealth ex rel. Stone v. Stone, supra, 293 Pa.Super. at 429, 439 A.2d at 186-187; Dunbar v. Dunbar, supra 291 Pa.Super. at 228, 435 A.2d at 881; Berry v. Berry, supra 278 Pa.Super. at 33, 419 A.2d at 1341.

It is also well settled that a court has broad discretionary power to remit accrued support arrearages. See: 42 Pa.C.S. § 6710. See also: Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 118 A.2d 144 (1955), cert. denied, 350 U.S. 995, 76 S.Ct. 544, 100 L.Ed. 860 (1956); Prescott v. Prescott, 284 Pa.Super. 430, 426 A.2d 123 (1981); Commonwealth ex rel. Belin v. Belin, 268 Pa.Super. 428, 408 A.2d 862 (1979); Commonwealth ex rel. Fryling v. Fryling, 220 Pa.Super. 68, 283 A.2d 726 (1971). However, in doing so the court must take into consideration all relevant factors. Prescott v. Prescott, supra 284 Pa.Super. at 431, 426 A.2d at 124; Commonwealth ex rel. Fryling v. Fryling, supra 220 Pa.Super. at 70-71, 283 A.2d at 727.

Appellant’s circumstances have been altered dramatically since the. order of support was initially entered on April 29, 1975. Appellant and his wife were then the owners of two residential properties, two automobiles and a water conditioning business. All this has changed. Medical evidence showed that appellant is now totally and permanently disabled by heart disease and diabetes. He will not benefit from further surgery. The residence in Cumberland County was sold in September, 1975, for approximately $30,000, with the proceeds being divided equally between husband and wife. A residential property in the City of Harrisburg was then the subject of a long term agreement of sale. The buyers subsequently defaulted, and the property is now occupied by appellant and the daughter of the buyers, who takes care of him. One vehicle was lost by foreclosure, and the furniture owned by the parties was sold. The water conditioning business has been lost, and appellant’s only income is $476.10 per month which he receives as a total disability payment from the Social Security Administration. When these moneys are inadequate to pay household expenses, the deficiency is made up from the earnings of the woman who shares appellant’s quarters and takes care of him. She does not otherwise pay rent. Appellant, although not housebound, is unable to engage in prolonged physical activity. He has not been gainfully employed since the court found him unable to pay the support order on August 5, 1975. He is presently sixty-one years of age.

Appellee and the daughter of the parties have been receiving social security payments on a monthly basis, commencing six months after appellant was declared totally disabled. At the time of the hearing on appellant’s petition to modify, each was receiving $205.40 per month. Appellee has engaged in part time employment to supplement her income.

These circumstances, which are not disputed, demonstrate that appellant is entitled to relief from the existing support order and that the trial court abused its discretion when it refused to modify the order and remit arrearages. An order of support must be fair and not confiscatory and must allow for the reasonable living expenses of the payor. Costello v. LeNoir, supra, 462 Pa. at 40, 337 A.2d at 868; Dunbar v. Dunbar, supra, 291 Pa.Super. at 230, 435 A.2d at 882; Ford v. Fitzgerald, 282 Pa.Super. 25, 26, 422 A.2d 657, 658 (1980). The unmodified order of $150 per week in this case was greater than the social security income which appellant was receiving. He had no other income from which the difference could be paid. Even if he sells the Harrisburg home in which he resides and the vehicle which he drives, his only remaining assets, the respite gained can be temporary only. The continuing order, therefore, is clearly confiscatory.

The trial court apparently based its decision upon the fact that appellant had sold assets in 1975 and had failed to account specifically for the proceeds. However, the evidence was that at the present time there remains only a small balance in appellant’s bank account. The court also posited that the jointly owned home in Harrisburg was available for payment of the existing support order. This property was and is owned jointly by appellant and appellee as tenants by the entireties. The evidence does not disclose its value or the unpaid balance of an encumbering mortgage. It does disclose that the property is non-income producing at the present time and that monthly mortgage payments, taxes and costs of repair are being paid by appellant. The evidence discloses that the vehicle owned by appellant, a 1976 Cadillac, is also encumbered.

In several cases we have held that a court should not enter a support order against a parent whose only income is from public assistance where the other parent and a child are also receiving public assistance. The obvious result of such an order, we have said, would be to reduce the amount the first parent required for his or her basic needs while increasing the amount the Pennsylvania Department of Public Welfare determined necessary for the basic needs of the other parent and child and thereby redistribute their respective awards. See: Ford v. Fitzgerald, supra; Commonwealth ex rel. Valentine v. Valentine, 266 Pa.Super. 506, 405 A.2d 933 (1979). Accord: Costello v. LeNoir, supra.

Social security payments for disability are intended to replace income lost because of disability. Binns v. Maddox, 57 Ala.App. 230, 232, 327 So.2d 726, 728 (1976); Perteet v. Sumner, 246 Ga. 182, 183, 269 S.E.2d 453, 454 (1980); Horton v. Horton, 219 Ga. 177, 178-79, 132 S.E.2d 200, 201 (1963); Potts v. Potts, 240 N.W.2d 680, 681 (Iowa 1976); Schulze v. Jensen, 191 Neb. 253, 257, 214 N.W.2d 591, 594 (1974). See also: Lopez v. Lopez, 125 Ariz. 309, 609 P.2d 579 (1980); Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); Boyes v. Boyes, 247 N.W.2d 265, 267 (Iowa 1976); Andler v. Andler, 217 Kan. 538, 539, 538 P.2d 649 (1975); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975). They are a substitute for that income and are made in accordance with the basic needs of recipients. The court’s order of support against appellant, if permitted to continue, will not only redistribute those awards but, in fact, confiscate appellant’s award and give it to appellee and the child. After appellant’s award has been confiscated, he will still be required to pay upwards of $150 per month. Such an order is clearly unreasonable.

Appellee suggests, however, that a court must look to and consider appellant’s assets, for it is the policy of the law to make all of a husband’s resources available for the support of his family. See: Dugery v. Dugery, supra 276 Pa.Super. at 54, 419 A.2d at 91, citing Commonwealth ex rel. DiVirgilio v. DiVirgilio, 182 Pa.Super. 475, 480, 127 A.2d 774, 776-777 (1956). Although this is certainly a correct statement of policy, it does not appear instantly that appellant’s assets justify an order substantially in excess of the social security payments received by appellee and the child. Appellant’s assets consist of a motor vehicle and entireties real estate in Harrisburg which is encumbered, occupied by appellant and non-income producing. To require that it be encumbered further or liquidated for arrearages, in the absence of evidence that such is feasible, appears unreasonable, if not confiscatory.

Appellee also argues that appellant failed to show a change in circumstances following August 5, 1975, when the court declined to vacate the support order of April 29, 1975. However, the only issue before the court on August 5, 1975, was whether appellant should be held in contempt for failing to pay the order of April 29, 1975. There was then before the court no petition to modify the support order, and there is now no record to show that such a request was either made or pursued at the hearing of August 5, 1975. Nevertheless, the contempt hearing court even then found that appellant had become disabled and observed that it found no assets from which the order could be paid. For this reason, the court refused to find appellant in contempt of court. Because of unsupported allegations of unidentified assets, however, the court continued the hearing without vacating the order.

Five years later, appellee was still unable to identify assets from which the support order could be paid. Appellant, on the other hand, demonstrated by competent, uncontradicted evidence that he had become totally disabled. He also showed that he owned no income producing property from which the order could be paid. Under these circumstances he was entitled to substantial, if not total, relief from the onerous burden of the confiscatory order.

Appellee also objected in the hearing court to granting appellant a credit for moneys paid directly to appellee and the parties’ child by the Social Security Administration. Nevertheless, the hearing court allowed a credit for such payments in the amount of $15,585.80. This was entirely proper. After this credit had been deducted, the arrearages accruing under the initial support order remained, nevertheless, in the vicinity of $20,000. Whether appellant can pay this amount, or any part thereof, must necessarily depend on the amount of his equity in the entireties real estate located in the City of Harrisburg. This is the only asset available. Because the record does not disclose the value of the real estate or the amount of the encumbrance thereon, we are unable to ascertain to what extent appellant can reasonably be expected to pay the remaining arrearages. Upon remand, the hearing court should require evidence of the value of appellant’s interest in this real estate. Then the court can determine to what extent appellant is entitled to a remission of arrearages. In making this determination, the exercise of a careful discretion is required. To the extent that the support order has had a confiscatory effect, it cannot now be enforced and arrearages should be remitted.

The order of the hearing court is reversed and set aside, and the case is remanded for proceedings and the entry of an order which are consistent with this opinion. Jurisdiction is not retained.

BECK, J., concurs in the result.

      . An appeal from this order was filed by Vogelsong, but it was dismissed on April 15, 1976 for failure to pursue it.

        . It appears that this monthly amount has increased since the hearing below, but the record does not disclose the increased amount.

      . This amount has also been increased since the hearing.

      . The precise amount of the balance does not appear.

      . The only record of the proceedings of August 5, 1975 is the court’s order quoted earlier in this opinion.


author:
JOHNSON, Judge:
      SPAETH, Judge,

text:
    457 A.2d 1302
    In re ESTATE OF Aleksandria KOLTOWICH, Deceased. Appeal of PENNSYLVANIA CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed March 11, 1983.

      David K. Lewis, Hermitage, for appellant.
    P. Raymond Bartholomew, Sharon, for participating parties.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Aleksandria Koltowich died on April 23, 1978. Her will, executed on August 29, 1977, was admitted to probate by the Register of Wills on May 8, 1978. In this will Mrs. Koltowich left a thousand dollars each to a nephew and great-nephew, ten thousand dollars to the Seventh Day Adventist church in Sharpsville, Mercer County, and the residue, which amounted to $249,423.32, to Mr. and Mrs. Suman, the proponents of the will.

This will was the second will. An earlier will, executed in 1973, left her entire estate in trust to the Pennsylvania Conference Association of Seventh Day Adventists, with the provision that five thousand dollars each should be given out of the trust to her nephew and great-nephew. The primary beneficiary of this first, unprobated will appealed to Orphans’ Court to contest the probate of the second will.

The basis asserted for the contest to the second will was that the signature to the second will was obtained by the exertion of undue influence, deception and fraud on the testatrix. The Orphans’ Court, after a nonjury trial, found that the contestant did not produce sufficient evidence of undue influence to cause the shifting, to the proponents of the will, of the burden of showing lack of undue influence, and dismissed the appeal from the probate of the will. It is from this dismissal that the contestant appealed to this court.

Appellant raises three questions: (1) whether the contestant met its burden of proof of the exertion of undue influence on the testatrix; (2) whether the Orphans’ Court erred in considering certain evidence presented by the proponents in its determination as to the burden of proof; (3) whether the proponents met their burden of proof of the absence of undue influence.

Appellate review of decisions in the Orphans’ Court on will contests is of limited scope. Estate of DiPietro, 306 Pa.Super. 238, 452 A.2d 532 (1982). The decree of the Orphans’ Court will not be reversed unless it appears that the court abused its discretion, that the court’s findings lack evidentiary support, that the court capriciously disbelieved the evidence, Lanning Will, 414 Pa. 313, 200 A.2d 392 (1964), or that the court committed an error of law, Estate of Fickert, 461 Pa. 653, 337 A.2d 592 (1975). The record is reviewed in the light most favorable to the appellee. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). Once the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proving, by clear and convincing evidence, that (1) a person in a confidential relationship with the testatrix (2) received a substantial benefit under the will (3) from a testatrix of weakened intellect. If this prima facie case of undue influence is shown, the burden then shifts to the proponent of the will to prove affirmatively the absence of undue influence. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975); Abrams Will, 419 Pa. 92, 213 A.2d 638 (1965).

The Orphans’ Court found that the contestant failed tó meet its burden of satisfying two of the three elements: the confidential relationship between testatrix and beneficiary, and the weakened intellect of the testatrix.

Testatrix was born circa 1892 of Ukrainian origin. With her husband she came to the United States from Canada. She was widowed in 1971. Thereafter she sold the farm on which she had lived with her husband, and moved to a house in Greenville. Her next door neighbor there was Lubie Stoenoff who was of Serbo-Croation origin and approximately the same age. It is Lubie Stoenoff s son and daughter-in-law who are the beneficiaries of the will at issue in this case. The two older women apparently became close friends, communicating with each other in their own Slavic languages. Lubie Stoenoff s daughter-in-law, Susan Suman, the beneficiary and proponent of the will, visited her mother-in-law and testatrix regularly, and then, once her mother-in-law entered a nursing home, continued to visit the testatrix. She did sewing for her mother-in-law and also for testatrix; she took testatrix for drives; she brought testratrix food which she had prepared ahead; she also did assorted personal tasks for testatrix; testatrix and proponent developed a close aunt/niece type of relationship.

With respect to the making of the will, proponent testified that after repeated requests by testatrix that she write up her will for her, in August of 1977 she (proponent) went to see an attorney, named by testatrix, on testatrix’s behalf. She made several visits, telling the attorney what testatrix’s wishes were with respect to the disposition of her estate. Testatrix herself never went to see the attorney, purportedly because she disliked lawyers, and the attorney never spoke directly to testatrix, purportedly for fear of causing trouble with her co-tenant. The will was drafted. Proponent collected it, paid the lawyer thirty dollars for it and took it to testatrix who put it away. Some days or weeks later, testatrix arranged that Lubie Stoenoff, Darra Jellotts, another Slavic friend, and proponent gather for the signing of the will. Proponent testified to having read the will to testatrix in English and in their native tongue, and that after the will was signed by Lubie and Darra, testatrix put the will away somewhere in her bedroom. Proponent did not see the will again until April of 1978. At that time, testatrix unexpectedly arrived at proponents’ house, telling her that she was unwell, and gave proponent assorted papers, including the will, for safe-keeping. A week later, testatrix was taken to a hospital where she died the next day, April 23, 1978. Proponent promptly took care of the funeral arrangements. The application for probate was filed in Mercer County on April 24, 1978.

Contestant’s witnesses testified that testatrix attended the Seventh Day Adventist church regularly. Church members would drive her to and from the church every Sabbath. One of them, in whose house the first will was signed in 1973, frequently took testatrix to her bank, and was aware that she had several bank accounts and a safety deposit box. During her years in Greenville testatrix gave the church a ten thousand dollar donation, but she later refused a request for a further donation.

Proponent testified that testatrix was upset at the church’s trying to get her money. Witnesses for contestant testified that testatrix was distressed that she might have unwittingly signed a will presented to her by the proponents.

Proponents testified that testatrix was terrified of being put in a nursing home. There was also testimony that the church people had suggested to testatrix that she sell her house, which she owned as a joint tenant with right of survivorship with a widower, also of Ukrainian origin, with whom she appeared to have rather a quarrelsome relationship, and move to a nursing home. Proponents also testified that they assured testatrix that they would not let her be put in a nursing home.

While it is true that proponents received a substantial benefit under the will, thus meeting one of the requirements for a showing of undue influence, we agree with the trial court that the other two requirements, i.e. confidential relationship and weakened intellect, are not met. A confidential relationship exists whenever “circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed [for] in both [situations] an unfair advantage is possible.” Estate of Ziel, 467 Pa. at 542, 359 A.2d at 734; Estate of Button, 459 Pa. 234, 239 n. 4, 328 A.2d 480, 483 n. 4 (1974) (collecting cases).

In cases where the appellate courts have found the requirement of weakened intellect satisfied, the testator/testatrix was in ill health and suffering from confusion, forgetfulness and disorientation. See e.g., Estate of Clark, supra (testatrix suffered from hardening of the arteries and its concomitant effect on the brain); Estate of Button, supra (lung disease, heart disease, arteriosclerosis, and indications of mental deterioration such as disorientation and confusion). On the other hand, contradicted testimony of occasional confusion or lapses of memory was insufficient to demonstrate clearly and convincingly either a lack of testamentary capacity or the less stringent requirement of weakened mental condition. Estate of Ziel, supra.

In this case, although there was testimony that testatrix did not drive a car, spoke poor English, and never dialed the telephone, there is nothing in the record that shows that she was mentally lacking in any respect. She appears instead to have been a healthy, strong-willed old lady who attended church regularly, with the help of the church members; who enjoyed chiefly the company of her Slavic friends; who did not want to end her days in a nursing home; and who quarrelled about money-matters with her co-tenant. She apparently had no relationship with the two relatives in Canada—the nephew and great-nephew to whom she left one thousand dollars each. The people who saw the most of her were her co-tenant, the Seventh Day Adventists, and the Slavic friends. Her friend Lubie Stoenoff was of testatrix’s generation—late seventies, early eighties. Proponents were roughly twenty years younger, and did a great deal for testatrix. Testatrix left ten thousand dollars to the specific church she had attended regularly, rather than to the Seventh Day Adventists’ Conference Association, and the rest of her money to the people who did the most for her and who visited her the most frequently-

The contestant therefore did not meet its burden of proving by clear and convincing evidence that undue influence was exerted upon the testatrix. This burden not having been met, there was no shifting of the burden to the proponents to prove the lack of undue influence.

Appellant asserts that the trial court erred by considering testimony from the proponents’ side in its analysis of whether the contestant had met its burden of proof of undue influence. The testimony in question is testimony by Susan Suman and by Darra Jellotts as to the events surrounding the signing of the will. Appellant is correct (1) that once the proponent presents evidence of the formality of probate, the burden of coming forward with evidence of undue influence is on the contestant, Estate of Clark, 461 Pa. at 59, 334 A.2d at 631, and (2) that where the issue is whether or not contestant has met its burden the proponent’s testimony is not yet to be considered, because the burden of disproving undue influence has not yet shifted to the proponent. See Clark, 461 Pa. at 61, 334 A.2d at 632-33. Appellant is also correct that the trial court did consider testimony about the execution of the will in deciding whether or not there was evidence of testatrix’s weakened intellect, which was one of the elements of undue influence contestant had to prove.

The difficulty with contestant’s argument is that the testimony by proponent Susan Suman was elicited by counsel for the contestant, who had called proponent as for cross-examination shortly after the beginning of the trial. Susan Suman’s testimony therefore was part of contestant’s case. Darra Jellotts testified, having been called by the proponents, later on in the trial, in Croatian, through an interpreter. As a subscribing witness to the will, however, she could be called, examined and cross-examined by contestant as well as by proponents, because subscribing witnesses are not regarded as ordinary witnesses, but rather as witnesses of the court. Szmahl’s Estate, 335 Pa. 89, 6 A.2d 267 (1939); Plotts’ Estate, 335 Pa. 81, 5 A.2d 901 (1939). Darra Jellotts, therefore, in testifying as to the signing of the will at least, was as much contestant’s as proponents’ witness. In the particular circumstances of this case therefore we do not find that the court erred in considering the testimony.

Furthermore, as contestant points out in its brief, its case must stand or fall on its own merits. Contestant urges that testatrix felt like a prisoner in her own home and that “her background” and her “fear of nursing homes was such as to amount to a weakening of her intellect and destruction of her free agency.” But contestant produced no evidence that does in fact or in law reach the level of weakened intellect.

After a careful review of the trial transcript we agree with the trial court that contestant did not satisfy the two further elements needed to make out a prima facie case of undue influence (weakened intellect and confidential relationship), and we find no error, in this case, in the trial court’s having considered the testimony of the two witnesses as complained of by contestant.

The decree of the Orphans’ Court is affirmed.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I should not decide whether appellant established that the testatrix stood in a confidential relationship to appellee or suffered from a weakened intellect when the will was executed, for I am persuaded by reading the record in the light most favorable to appellee that in either event, the resulting presumption that appellee exercised undue influence over the testatrix was rebutted by the testimony of Darra Jellots. N.T. Ill, 3-23.

      . The weakened mental condition which must be shown as an element of undue influence need not amount to testamentary incapacity. Estate of Ziel, 467 Pa. at 542, 359 A.2d at 734; Estate of Clark, 461 Pa. at 63, 334 A.2d at 633.

      . Estate of Koltowich, Register’s No. 36571, slip op. at 11 (C.P. Mercer County, October 24, 1980), where the court said:
      Most obviously, there is a lack of clear and convincing evidence that Mrs. Koltowich was of a weakened intellect on August 29, 1977 when she executed the Will. The Will was read to her in both English and Russian. The Testatrix then examined the Will line by line, stated the Will was proper and executed it in the presence of Luby Stoenoff, Dara Jellots, both of whom witnessed the Will, and Susan Suman. Dara Jellots, who had nothing to benefit, testified in detail concerning the incident.
      Mrs. Koltowich then retained the Will from August 29, 1977 until April 16, 1978 when she gave it to Susan Suman because Mrs. Koltowich was about to enter the hospital.


author: BECK, Judge:

text:
    457 A.2d 1307
    Michael POWELL v. CITY OF PHILADELPHIA and John Jones, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1983.
    Filed March 18, 1983.

      Pamela L. Perry, Chief Assistant City Solicitor, Philadelphia, for appellants.
    Myron H. Deutsch, Philadelphia, for appellee.
    Before BECK, JOHNSON and MONTEMURO, JJ.
   BECK, Judge:

Appellants, City of Philadelphia and John F. Jones, appeal from a May 13, 1980 order entered by the Court of Common Pleas of Philadelphia County sitting en banc which dismissed appellants’ timely filed motion for a new trial and affirmed the trial judge’s order of April 18, 1979 in favor of appellee, Michael Powell, in the amount of $150,000.00.

In this appeal, appellants do not contest liability; rather, they argue that the lower court erred in awarding excessive damages to appellee for injuries he sustained in an altercation with a City fireman, appellant-Jones. We reject this claim and therefore affirm.

The record reflects that a group of City firemen responded to a false alarm and apprehended two boys who they thought had pulled the alarms. Appellee, who had observed the perpetrators pulling the alarm, yelled to the firemen that they had apprehended the wrong children. Jones then crossed the street to question appellee and an argument followed during which Jones struck appellee’s left knee with a wrench knocking him to the steps. Jones then grabbed appellee by the shirt and threw him to the curb. That distance was estimated to be approximately eight feet. Appellee did not, and apparently could not, stand after being thrown to the pavement; he was carried off on a police stretcher.

In its opinion, the en banc trial court rejected appellants’ claim that Jones was acting in self defense and found that he was acting in the scope of his employment and that both he and the City therefore were liable. Appellants do not question those findings on appeal; they merely attack the award as being excessive.

Our oft-cited scope of review in evaluating this claim was reiterated in Christides v. Little, 274 Pa.Super. 343, 347, 418 A.2d 438, 440 (1980) (quoting Skoda v. West Penn Power Co., 411 Pa. 323, 338, 191 A.2d 822, 830 (1963)):

Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, 379 Pa. 483, 108 A.2d 754 (1954). The granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961). We will not hold that a verdict is excessive unless it is ‘so grossly excessive as to shock our sense of justice.’ Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953)[.]

While in the instant matter, the trial judge, rather than a jury, arrived at the amount of damages which is claimed to be excessive, it is clear “that the findings of a trial judge sitting without a jury ... are accorded the same weight as the verdict of a jury.” Christides, 274 Pa.Super. at 347, 418 A.2d at 440 (citations omitted).

This Court in Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978) reiterated the following factors found relevant in Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976) in assessing whether a verdict is excessive:

(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Chodoff, 259 Pa.Super. at 367, 393 A.2d at 871 (footnote omitted). We proceed to evaluate the above award in light of the preceding factors.

We find initially that appellee’s injury is severe and that it is manifested by objective physical evidence. After being struck on the kneecap, appellant suffered extreme pain and was unable to stand up. As a result of this injury, appellee first endured a partial patellectomy (removal of the kneecap) and subsequently a complete patellectomy. He then was repeatedly hospitalized and treated for, inter alia, an infection of the knee and removal of wire sutures from the earlier operations that protruded from his knee.

We note also that the loss of the patella is, of course, a significant physiological detriment. Dr. Henry F. Wieder testified to its two major functions:

It has at least a twofold purpose. First of all it serves as a physical protection to the front of the knee where a portion of the articular surpasses, exposed especially when the knee is flexed and bent. The kneecap stays in its same relationship to the leg bones and the knee bends, the articular surface, weight-bearing articular surface of the femur is brought into exposed position and the kneecap covers it and protects this portion of the joint surface when the knee is bent.
Then its second major purpose is, as I have been talking about before, a mechanical advantage. It raises the effective line of action of the quadricep tendon away from the center of rotation of the knee which is back in the condyle of the femur and by raising that center of rotation it increases the focrum [sic] of action.
For instance, if you try to turn a nut on a bolt with a pair of pliers and it’s tight or you used a wrench with a long handle it’s much easier to turn it with a long-handle wrench. The patella is the handle of the wrench on the knee.

Notes of Testimony (“N.T.”) 3/6/79 at 75-76.

We find further that there was unequivocal testimony from Dr. Wieder concerning the permanency of appellee’s injury and appellants, in fact, acknowledge that “[a]mong the permanent limitations resulting from [appellee’s] knee injuries are [his]: 1. inability to run, 2. inability to carry weights on uneven surfaces, 3. sensitivity of the scar, and 4. pain of the knee in general in cold weather.” Brief for Appellants at 15.

Appellants emphasize that only one bill for $66.00 from Episcopal Hospital was admitted into evidence to substantiate the cost of appellee’s medical treatment; the remaining bills, primarily from Philadelphia General Hospital, were not admitted because they were not properly authenticated. Appellants are, of course, accurate in their statement, but this Court has held that “[disparity between out-of-pocket expenses and the amount of the verdict is not sufficient basis to award a new trial, and on appeal we will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice.” Fretts v. Pavetti, 282 Pa.Super. 166, 176, 422 A.2d 881, 885 (1980) (citations omitted); e.g., Murphy v. Penn Fruit Company, 274 Pa.Super. 427, 418 A.2d 480 (1980). In light of the prolonged and repeated hospitalizations and operations discussed above and acknowledged by appellants, we give little weight to the disparity between the documentable out-of-pocket expenses and the award.

This Court in Fretts v. Pavetti, 282 Pa.Super. at 176-177, 422 A.2d at 886, concluded that such expenses certainly do not control the assessment of damages for pain and suffering:

Although out-of-pocket expenses in this case were minimal, there was considerable testimony in this case concerning pain and suffering. We have previously noted the difficulty in achieving precision in calculating appropriate compensation because one cannot discern the amount of pain and suffering that was endured merely by considering the expenses incurred. See Zagari v. Gralka, 264 Pa.Super. 239, 399 A.2d 755 (1979); Robert v. Chodoff, [259 Pa.Super. 332, 393 A.2d 853 (1978)]; Pape v. Short, 28 D. & C.2d 581 (C.P. Allegheny Co. 1961), aff'd. 199 Pa.Super. 617, 186 A.2d 431 (1962).

Appellants also place considerable emphasis upon the fact that appellee was unemployed at the time of the incident and the conclusion that his sporadic work record after the injury cannot be directly tied to appellee’s injury. As we recently noted in Mattox v. City of Philadelphia, 308 Pa.Super. 111, 129, 454 A.2d 46, 55 (quoting Wright v. Engle, 256 Pa.Super. 321, 326, 389 A.2d 1144, 1147 (1978)), “[t]he consideration of loss of earning capacity is not solely the comparative amount of money earned before or after an injury. The true test is whether or not there is a loss of earning power, and of ability to earn money.” [Mazi v. McAnlis, 365 Pa. 114, 121, 74 A.2d 108, 112 (1950).] While we have little doubt that appellee’s physical condition impaired his employment prospects after the incident, the award need not be premised upon a finding of lost wages. Indeed, the well-documented pain and suffering which was directly attributable to the injury and which will permanently afflict appellee was a sufficient basis upon which to predicate the award.

The final factor in the Chodoff calculus is the amount plaintiff demanded in his original complaint. We are at a loss to evaluate that factor as the complaint is not a part of the record. We note, however, that the analysis of the Chodoff Court bearing upon this variable is persuasive in the instant case as well.. In Chodoff, we noted that “[t]he record does not contain the original complaint. In any event, the amount of damages claimed in the 1965 complaint would be of limited relevance to our inquiry since the substantial bulk of appellee’s alleged damages accrued after the filing of the complaint.” Id., 259 Pa.Super. at 367 n. 39, 393 A.2d at 871 n. 39. Here much of the surgery (most notably, the total patellectomy) and the resulting pain and weakening of the left leg occurred after the filing of the June 25, 1973 complaint.

We conclude, therefore, that in light of the manifest severity and permanence of his injury and the resulting suffering and disfigurement, the trial court’s order establishing damages in the amount of $150,000.00 was not an abuse of its discretion.

Order affirmed.

       Appellants argue that the testimony of Dr. Wieder, because it was based upon the inadmissible Philadelphia General Hospital records, was also inadmissible. Those records were not admitted because of a lack of proper authentication. Appellee correctly notes, however, that Dr. Wieder testified at trial that his opinion would be the same even if he had not seen the records of that hospital. He stated clearly: "Based on the history as given me, just by Mr. Powell and the findings of my examination, my opinion would still be the same.” N.T. 3/6/79 at 68. We therefore find appellants’ claim to be meritless.


author: CAVANAUGH, Judge:

text:
    457 A.2d 1310
    COMMONWEALTH of Pennsylvania v. Ivy CRAIG, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed March 25, 1983.
    Sara M. Webster, Assistant Public Defender, Doylestown, for appellant.

      Dianne McMonagle Devlin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Appellant, age 19, pleaded guilty on August 18, 1980, to robbery, aggravated assault, recklessly endangering another person, conspiracy, and violating the Uniform Firearms Act. He was thereafter sentenced to eight months to six years imprisonment at the State Correctional Institution at Camp Hill. After a hearing on appellant’s petition for reconsideration of sentence, at which defense counsel stated that Camp Hill would not accept appellant with a minimum sentence, the sentence was modified to a term of imprisonment not to exceed six years. In modifying appellant’s sentence, the court specifically indicated that it was doing so in order for appellant to be placed at Camp Hill. See 61 P.S. § 485. This appeal from the court’s modified sentence followed.

The sole issue in this appeal is whether the modification of appellant’s sentence, eliminating the eight months minimum, represents an increase in sentence, thereby violating the double jeopardy clause. Appellant argues, inter alia, that the sentence is unlawful because it fails to set forth a minimum term of imprisonment.

This case is factually indistinguishable from Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 419 A.2d 596 (1980), where we found illegal a sentence imposing only a maximum term of imprisonment. In so doing, we held that sentencing is governed exclusively by the then applicable Sentencing Code which stated in pertinent part:

MININUM SENTENCE-—The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed. 18 Pa.C.S.A. § 1356(b).

By interpreting the sentencing statute to require the fixing of a minimum, as well as a maximum, sentence, we specifically disavowed earlier cases which presumed a one day minimum on a flat sentence, i.e., a sentence with a maximum term only. As we stated: “This interpretation is more in keeping with the policy of having the full sentencing responsibility lodge with the trial court and it eliminates any ‘construction’ of sentences by appellate courts.” Id., 276 Pa.Super. at 557, 419 A.2d at 598. Accordingly, we vacated the judgment of sentence and remanded the case for resentencing. A similar result, based on Aeschbacher, was recently reached by this court in Commonwealth v. Shoemaker, 303 Pa.Super. 242, 449 A.2d 669 (1982) (allocatur granted).

Those cases are controlling and dispose of the issue before us.

Judgment of sentence vacated and case remanded for resentencing, without prejudice to appellant’s right to raise a double jeopardy claim in any appeal from a new sentence. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 6101 et seq.

      . Since illegality of sentence is a non-waivable issue, which we can raise sua sponte, Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982); Commonwealth v. Betoni, 254 Pa.Super. 26, 385 A.2d 506 (1978), we reject the Commonwealth's argument that appellant’s claim has been waived.

      . 18 Pa.C.S.A. § 1356(b); later re-enacted in 42 Pa.C.S.A. § 9756(b). See now 204 Pa.Code § 303.1 et seq.

      . The Pennsylvania Supreme Court granted allocatur in Shoemaker on November 4, 1982 and, as of the filing of this opinion, has not rendered its decision. In the interest of promptly disposing of this case, we have opted to follow Aeschbacher and Shoemaker instead of awaiting the Supreme Court’s review of Shoemaker. We are hopeful, however, that the Supreme Court will resolve the apparent conflict between the Sentencing Code, requiring a definite maximum and minimum sentence, and 61 P.S. § 485, which requires an indeterminate sentence for offenders to be confined at Camp Hill. (But see 61 P.S. § 486 providing for modification of sentence in the event a definite term is inadvertently fixed). See generally discussion of 61 P.S. § 485 in Commonwealth ex rel. Feflie v. Attorney General, 29 Pa.Commw. 473, 371 A.2d 555 (1977). Since the issue was not squarely raised in this appeal, we decline to address it at this juncture.

        We note, however, that in Commonwealth v. Townsend, 497 Pa. 604, 443 A.2d 1139 (1982), citing 61 P.S. § 461 et seq. (persons who may be confined at Camp Hill) the Supreme Court affirmed a judgment of sentence of five to fifteen years imprisonment where the Court expressed its desire that the sentence be served at Camp Hill. In that case, the court applied the Sentencing Code in reviewing of defendant’s excessiveness of sentence claim, thereby implying that the Code is applicable even in cases involving confinement at Camp Hill.
      On the other hand, this court in Commonwealth v. Parker, 277 Pa.Super. 234, 419 A.2d 748 (1980), did not consider the applicability of the Sentencing Code to a sentence imposed under 61 P.S. § 485. In Parker, defendant was sentenced to a term of imprisonment not to exceed three years. When told that Camp Hill would not accept defendant, the court, without notifying defendant, modified the sentence to provide for an indeterminate term as required under 61 P.S. § 485. We vacated the judgment of sentence, holding that the court acted improperly in modifying the sentence without notifying defendant. We also vacated the court’s original sentence because it would not serve the court’s purpose of confining defendant at Camp Hill.


text:
    457 A.2d 1312
    COMMONWEALTH of Pennsylvania, v. John R. McCOOL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed March 25, 1983.

      Harry V. Klein, Sunbury, for appellant.
    Thomas E. Boop, Assistant District Attorney, Sunbury, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Appellant John Robert McCool was convicted by a jury of one count each of kidnapping, unlawful restraint, rape, involuntary deviate sexual intercourse, indecent assault, robbery, and unauthorized use of a motor vehicle. Motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a total of 30 to 60 years imprisonment. He claims on appeal that the lower court abused its discretion in refusing to grant his request for a continuance for the purpose of retaining private counsel, and that trial counsel was ineffective in various respects. For the reasons discussed below, we vacate the judgment of sentence and remand for further proceedings.

Appellant was imprisoned in New York state at the time he was initially charged with the instant offenses. He was brought into Pennsylvania on February 16, 1981 pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq., and was imprisoned in Snyder County where he stood trial on unrelated charges on February 26, 1981. He was then brought into Northumberland County where he was preliminarily arraigned on the instant charges on March 2, 1981. A preliminary hearing was held on March 6, 1981, at which time appellant first met the public defender who had been appointed to represent him. Appellant and his counsel met for the second time at the in-court arraignment held on April 2, 1981. Appellant notified his counsel, by way of a letter dated April 15, 1981, that their relationship was “terminated”, whereupon counsel filed a motion requesting leave to withdraw from the case.

At a hearing held on the motion on May 7, 1981, appellant testified that he did not trust his appointed counsel, that counsel believed him guilty and had laughed at his offered alibi defense, and that counsel had not come to see him as he should have. Appellant stated that he would rather proceed without an attorney than proceed with the attorney appointed to represent him. Appellant’s counsel testified at the hearing that he personally did not feel that there were irreconcilable differences between himself and the appellant, but he indicated that he did not feel he could effectively represent appellant if appellant was unwilling to cooperate with him. At the conclusion of the hearing, the court denied counsel’s motion to withdraw, stating that it did not want to delay the trial, which was scheduled to begin the following week, and that there was not “enough cause shown” to warrant counsel’s withdrawal. The court did, however, appoint a second public defender to serve as co-counsel.

Appellant’s case was called for trial on May 12, 1981. Prior to the selection of the jury, appellant requested a continuance for time within which to retain private counsel. The court held a brief hearing on the request, at which time appellant reiterated that he did not trust the attorney appointed to represent him and stated that he did not want the public defender appointed to serve as co-counsel either, but that he wanted someone who would take a personal interest. He informed the court that he had spoken with his brother the night before and that his brother had agreed to provide money for appellant to obtain private counsel. He requested a continuance of “at least a couple days” so that he could get in touch with his brother again and make the necessary arrangements. The court delayed the start of trial a few hours in order to give appellant a chance to contact his brother and confirm his willingness and ability to provide the necessary funds. Unfortunately, appellant “was ultimately unable to contact his brother, and thus could not with any degree of accuracy relate to the court whether in fact his brother would pay for an attorney, nor how much he could pay, nor which attorney he had in mind to retain.” (Lower court opinion at 3). The court denied a further continuance and the case proceeded to trial. As stated above, appellant was found guilty of all charges and was sentenced to a term of imprisonment. The instant appeal ensued.

It is clear that a person charged with a crime has a constitutional right to the assistance of counsel which includes the right to a reasonable opportunity to obtain counsel of his or her own choice. Commonwealth v. Kittrell, 285 Pa.Super. 464, 467, 427 A.2d 1380, 1381 (1981); Commonwealth v. Andrews, 282 Pa.Super. 115, 122, 422 A.2d 855, 858 (1980). That right, however, is not absolute. As we stated in Commonwealth v. Atkins, 233 Pa.Super. 202, 207-08, 336 A.2d 368, 371-72 (1975):

[T]he desirability of permitting a defendant additional time to obtain private counsel of his choice must be weighed against the public need for the efficient and effective administration of justice. The matter of continuance is traditionally one within the discretion of the trial judge, and no prophylactic rule exists for determining when a denial of a continuance amounts to a violation of due process. Each case must be decided by balancing the competing interests, giving due regard to the facts presented. “[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (citations omitted).

We can not say that the lower court abused its discretion in denying the appellant’s request for a continuance in the instant case.

An indigent defendant has a right to court-appointed counsel. However, the court’s duty is to furnish an able and willing counsel who has the qualifications to lend effective representation, that is, one who would reasonably be expected to inspire the defendant’s confidence. It is not the court’s duty to denominate a series of attorneys for the defendant in the hope of stimulating a confidence unreasonably withheld or to furnish an advocate in strict conformity with the defendant’s stylized notions of acceptable forensic skills.

The appellant in the instant case was provided with court-appointed counsel. He was given an opportunity at the hearing on counsel’s motion to withdraw to explain the reasons for his dissatisfaction with his appointed counsel. At the conclusion of that hearing, the court found that there was no good cause shown for replacing appointed counsel, but, as a precautionary measure, a second attorney was appointed to serve as co-counsel. The decision not to permit the withdrawal of court-appointed counsel was made five days before appellant was scheduled to go to trial, and yet appellant waited until the night before his trial to contact his brother and until the morning of the trial to request a continuance for the purpose of obtaining private counsel. We have repeatedly condemned the practice of waiting until the day of trial to request such a continuance. Commonwealth v. Nicolella, 307 Pa.Super. 96, 452 A.2d 1055 (1982); Commonwealth v. Kittrell, supra; Commonwealth v. Andrews, supra. Nor is this a case where a defendant was forced to go to trial without counsel or with counsel who was unprepared. On the contrary, appellant’s court-appointed counsel was familiar with the case and was prepared for trial, and court-appointed co-counsel was ready to provide any necessary assistance. Under the circumstances presented in this case, we can not hold that the lower court abused its discretion in denying appellant’s request for a continuance.

Appellant also alleges that his trial counsel was ineffective in several respects. Because current counsel was appointed to represent appellant after post-verdict motions were denied, this appeal presents the first opportunity for appellant’s present counsel to challenge previous counsel’s effectiveness. Therefore, appellant’s allegations of ineffectiveness are properly presented for appellate review. Because no evidentiary hearing has been held allowing trial counsel to explain his actions, we can not determine from the present record whether or not counsel was effective. Consequently, we must vacate the judgment of sentence and remand for an evidentiary hearing on appellant’s claims of ineffective assistance of trial counsel. Should the court determine that appellant has been denied the effective assistance of counsel, it shall grant him a new trial. Otherwise, the court shall reinstate the judgment of sentence. In either instance, appropriate appellate rights may be exercised by the aggrieved party in this court.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: JOHNSON, Judge:

text:
    457 A.2d 1315
    Toyoka LaROCCA, Sam LaRocca and Toyoka LaRocca, as Administratrix of the Estate of Scott Anthony LaRocca, Deceased, Appellants, v. AETNA LIFE AND CASUALTY COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed March 25, 1983.
    Karl W. Wiedt, Pittsburgh, for appellants.
    James F. Manley, Pittsburgh, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

On September 17, 1982, this panel filed an opinion in the above-captioned case. Toyoka LaRocca et al. v. Aetna Life and Casualty Co., Inc., 304 Pa.Super. 421, 450 A.2d 751 (1982). Pursuant to a petition for allowance of appeal by Aetna Life and Casualty Company, the Supreme Court of Pennsylvania, by per curiam order dated December 31, 1982, granted Aetna’s petition, vacated our order in this case and remanded to this court for consideration in light of the supreme court’s opinion in Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982) (hereinafter Sachritz).

In our previous opinion in this case, we held that the proper statute of limitations for recovery of work loss benefits involving a deceased victim where no previous work loss benefits had been paid was six years, based on the decision in Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 301 Pa.Super. 146, 447 A.2d 284 (1982).

However, the supreme court in Sachritz determined, inter alia, that work loss benefits, as well as other benefits under the No-fault Act belonging to the insured or a deceased insured’s representative, are subject to a two year statute of limitations. Sachritz further held that 40 P.S. § 1009.106(c)(1) governed “post-mortem” work loss benefits.

In reviewing the facts of the instant case, the record indicates that the deceased died on August 13, 1978 as a result of injuries received in an automobile accident on that date. The writ of summons, entering suit in assumpsit, was filed on July 23, 1980. Therefore, as suit was instituted within two years after the victim suffered the loss, as required by section 106(c)(1) of the No-fault Act, the action was timely.

We note that the original appeal to this court brought two distinct issues for our review, both involving the period within which suit may be commenced. The one issue, relating to the appropriate statute of limitations to be applied to claims for survivor’s loss benefits was withdrawn by appellants in open court at time of oral argument, which withdrawal was thereafter confirmed by formal letter to the court. As to the second issue, relating to the statute of limitations to be applied on claims for work loss benefits, we had previously reversed the trial court’s order which granted judgment on the pleadings against appellants, but applied an incorrect limitations period.

Since we now conclude that by applying the correct rule as set forth in Sachritz the action continues to have been timely filed, we again reverse so much of the trial court’s order as granted judgment in favor of Aetna Life and Casualty Company on the claim for work loss benefits (and dismissed the complaint for work loss benefits as untimely) and remand the case for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . Toyoka LaRocca et al. v. Aetna Life and Casualty Co., Inc., 500 Pa. 178, 455 A.2d 107 (1982).

      . We note that on petition for allowance of appeal, the supreme court has granted the petition for review and vacated and remanded the case to the superior court in Guiton. Pennsylvania National Mutual Casualty Insurance Company v. Guiton, 500 Pa. 179, 455 A.2d 108 (1983).

      . Act of July 19, 1974, P.L. 489, No. 176, eff. in 12 months, 40 P.S. §§ 1009.101 et seq.


author: WATKINS, Judge:

text:
    457 A.2d 1316
    Nancy H. BERNSTEIN, Appellant, v. Sanford BERNSTEIN.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1981.
    Filed March 25, 1983.

      Howard S. Epstein, Allentown, for appellant.
    William J. Fries, Allentown, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

The appellant, Nancy Bernstein, initiated an action against her ex-husband, Sanford Bernstein, the appellee herein, under the Civil Procedural Support Law seeking support for herself and three children born and adopted during her marriage to the appellee. The parties became separated on June 13, 1978 and were divorced on January 25, 1980. The appellant has custody of the children. The court below denied support for the appellant and also denied any additional support for the children as it found that they were receiving the sum of $681.00 per month from social security because the appellee was disabled. Appellant then took the instant appeal.

On December 5, 1978, the appellee was arrested and charged with the crime of solicitation to commit murder of the appellant (his wife). On September 24, 1979, he was convicted of said crime. Meanwhile, on July 19, 1979, the appellant instituted the instant support case. Hearings were held on several occasions (in February, March, and July) of 1980. On October 23, 1980, the court denied support to the appellant and the three children.

The evidence adduced at the support hearings revealed that appellee had earned between $180,000 and $200,000 as an investment tax advisor in the years prior to his arrest but that he had paid no federal income tax on those earnings. The court found that: after his arrest and conviction, appellee’s income was limited to Social Security Disability benefits in the amount of $468.00 per month; that he owned no motor vehicle; that his estate had been diminished by substantial legal fees; and that his real estate was encumbered by an $80,000 mortgage and subject to foreclosure proceedings; that his only other asset was property held jointly with the appellant. However, the appellant argues that because appellee’s expenses are now being underwritten by the Commonwealth that his financial needs are not great and that she is unemployed and in great need of additional funds to support the children.

The problem we have in deciding this case is that the record does not present a clear picture of appellee’s assets. Although the appellee testified that he has spent $50,000 in attorneys’ fees, the record never established the total worth of his assets. He had testified that on January 1, 1979 he had between $90,000 and $100,000 available to him as a result of the sale of assets. Appellant testified that two weeks before their separation the appellee had taken a box which she believed contained between $300,000 .and $400,-000 cash. The appellee never specifically refuted this allegation and the fact that the appellee earned between $180,-000 and $200,000 in the two years before his arrest and paid no federal income tax on said earnings leads to the conclusion that his assets were greater than he had stated. The appellant argues that the $80,000 encumbrance is also misleading because $40,000 of that represented his bail bond which he did not forfeit. Thus, the appellant argues, the true encumbrance is only $40,000. Knowing the nature and value of appellee’s assets is important to the resolution of this case because appellant charges that appellee’s assets are income producing and that, although his capacity to earn money is diminished because of his conviction, his assets provide him with large sums of unearned income which remains unaffected by his conviction.

A parent has the duty to support his children and his capacity to do so is determined by the extent of his property, his income, his earning ability, and the station in life of the parties. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Because the value and worth of appellee’s assets is essential to a determination of this case, we will reverse the case and remand it to the court below for a hearing regarding the nature, value and income generating ability of his assets.

Order reversed and the case remanded to the court below for a hearing to determine the exact nature, value and income generating ability of the assets of Sanford Bernstein. Jurisdiction is retained.


author: PER CURIAM:

text:
    457 A.2d 1318
    RIGIDPLY RAFTERS, INC. v. AETNA CASUALTY AND SURETY COMPANY, and Brotherly Aid Liability Plan, Lancaster Mennonite Conference. Appeal of the BROTHERLY AID LIABILITY PLAN, Lancaster Mennonite Conference.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1981.
    Filed March 25, 1983.

      Jay N. Abramowitch, Reading, for appellant.
    Clifford N. LePage, Jr., Reading, for Rigidply Rafters, Inc., appellee.
    Harry Reed, Jr., Lebanon, for Aetna Cas. and Sur. Co., appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   PER CURIAM:

This is an appeal from a February, 1981 order granting the summary judgment motion of appellee—Rigidply Rafters, Inc., against appellant—The Brotherly Aid Liability Plan, Lancaster Mennonite Conference on the question of coverage by Brotherly Aid under a no-fault motor vehicle insurance policy issued by Brotherly Aid covering Rigid-ply’s truck tractor and semi-trailer with crane. The question of coverage arose pursuant to an accident claim made by an injured third party against Rigidply. The injured third party filed a complaint averring that Rigidply’s employee—truck driver was negligently maneuvering a crane attachment mounted on Rigidply’s truck tractor while unloading wooden roof trusses from the truck and such negligent action caused the crane to strike the injured party.

At the time of this incident, Rigidply was insured under two insurance policies. One was issued by appellee—Aetna Casualty and Surety Company. This policy was a comprehensive general liability policy containing an automobile exclusion clause. The second policy, issued by Brotherly Aid, was a no-fault policy. After the accident, Rigidply approached both insurers seeking assistance in defending the claim. Both insurance carriers denied liability for coverage of the accident.

Rigidply then filed a complaint in the Court of Common Pleas of Berks County for declaratory judgment against Aetna and Brotherly Aid to determine the applicable coverage. Both Aetna and Brotherly Aid filed Answers and New Matter which set forth their respective bases for denying liability. The parties then proceeded to take depositions of all witnesses regarding the issue of coverage. Motions for summary judgment were then presented to the lower court, with each party requesting summary judgment in its favor and against the two remaining parties.

The lower court issued an opinion and order granting the motions of Rigidply and Aetna against Brotherly Aid and denying Rigidply’s and Brotherly Aid’s motions against Aetna.

Brotherly Aid filed an appeal from the aforementioned order. Aetna then filed a motion to quash the appeal claiming that the order was interlocutory insofar as the lower court denied summary judgment against Aetna. The Superior Court issued a per curiam order granting Aetna’s motion to quash as to Brotherly Aid’s appeal from a denial of summary judgment against Aetna, but denying the motion to quash the appeal from that portion of the order granting summary judgment against Brotherly Aid. Therefore, Brotherly Aid’s appeal as to the summary judgment granted against it is now before this court.

The basic issue in the instant appeal is Brotherly Aid’s liability for coverage of the. accident. We have thoroughly reviewed the entire record of this case and upon a re-examination of all the facts and their ramifications we have determined that we should not address the merits of appellant’s contentions; instead we quash this appeal.

Of course the issue of the appealability of the lower court’s order is important and we may raise it sua sponte. Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981); See 42 Pa.C.S.A. § 704(b)(2). Our court’s appellate jurisdiction is generally limited to appeals from final orders. Indeed since our jurisdiction to hear appeals is limited we cannot entertain appeals not within our jurisdiction. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), aff'd, 498 Pa. 536, 448 A.2d 1379 (1982). 42 Pa.C.S.A. § 742. An order is interlocutory and not final unless it effectively puts the litigant out of court, terminates the litigation or disposes of the entire case. Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981). However, in determining what is a final appealable order we must “look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, 288 Pa.Super. at 253, 431 A.2d at 1034-45. Following our extensive review of the facts of this case and the lower court’s order, we have concluded the practical ramifications do not lead to a final adjudication of liability for coverage against Brotherly Aid. On the contrary, Aetna could still be found liable for coverage in this case. As Judge Schaeffer noted this in his memorandum opinion of March 27, 1981: “Lest there be any basis for misunderstanding, we now emphasize that this Court as of the present time has not concluded that the Aetna policy did not cover the plaintiff’s tractor trailer at the time of the injuries or that the oral representations made were not binding on Aetna. These matters are still open and will be decided and determined at trial.”

The practical effect of the order is that Brotherly Aid’s liability for coverage could vary depending upon the final disposition against Aetna; as such the judgment entered against Brotherly Aid is not final. In addition Pa.R. C.P. 1035(b) permits a court to grant summary judgment with respect to liability only, but such an order is “interlocutory in character” and clearly nonappealable. Albert L. Inselberg v. Employers Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 434 A.2d 752 (1981).

Accordingly, we find this appeal to be premature and it must be quashed.

Appeal quashed.

DiSALLE, J., did not participate in the consideration or decision in this case.