author: OLSZEWSKI, Judge:

text:
    512 A. 2d 1273
    COMMONWEALTH of Pennsylvania v. Willie MORTON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1986.
    Filed July 28, 1986.

      Theresa Connolly, Willow Grove, for appellant.
    Leonard Deutchman, Assistant District Attorney, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. Appellant, Willie Morton, after a bench trial, was convicted of robbery, criminal conspiracy, simple assault, and attempted theft. Post-trial motions were denied, and appellant received a sentence of eight to twenty-three months’ imprisonment for robbery and a concurrent sentence for conspiracy. The sole issue raised on appeal is whether the evidence presented at trial was sufficient to support a conviction on all four counts.

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime (were) established beyond a reasonable doubt.

Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983) (citing Commonwealth v. Pitts, 486 Pa. 212, 215, 404 A.2d 1305, 1306 (1979)); see also Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). Viewed in this light, the trial court established that in the early morning hours of December 22, 1984, Sherry Tate was walking along 54th Street towards City Line Avenue in Philadelphia when appellant and an unidentified male stopped her and asked her what time it was. After answering, the men asked her for a quarter. She continued walking, with both men following a short distance behind, and then she was suddenly pushed to the ground. Her hands were restrained behind her, her mouth was covered and, as one of the assailants felt inside her clothing, she was searched for money. Finding none, the two men ran off together.

At the scene, Ms. Tate gave to the police a description of appellant, having viewed him during the altercation and having recognized appellant as one of a group who would “hang out” on the corner of 52nd Street and Market Street, past where she would walk each day on her way home from work. On December 27, 1984, Ms. Tate, searching the area of 52nd and Market Streets with police, spotted and identified appellant.

We find sufficient evidence to support all four convictions. Under the Crimes Code of Pennsylvania:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
18 Pa.C.S. Sec. 3701(a) (emphasis added).
A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
18 Pa.C.S. Sec. 3921(a).
A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. Sec. 901(a).

In Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979) (citing Commonwealth v. Scott, 246 Pa.Super. 58, 369 A-2d 809 (1976)), this Court stated that “(t)o sustain a conviction under Sec. 3701(a)(l)(ii), the Commonwealth need not prove a verbal utterance, but may show aggressive actions that threaten serious bodily injury.” Applying that standard to the case at bar, we conclude that when two men force a young woman to the ground in an attempt to take her money, restraining her movement by holding her hands behind her back and covering her mouth, it can be reasonably presumed that they intended to inflict fear into the mind of the victim within the meaning of Sec. 3701(a)(l)(ii). See Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983) (concluding that entering a store through a small window and telling an employee to “get back, get back” were aggressive actions sufficient to support a robbery conviction under Sec. 3701(a)(l)(ii)). Thus, evidence establishing that appellant placed the victim in fear of serious bodily injury during an attempted theft supports the trial judge’s findings of both robbery and simple assault.

Appellant strongly challenges the conspiracy conviction, contending that the Commonwealth’s evidence merely established his presence at the scene. While appellant correctly states that a conviction for conspiracy requires a specific intent “of promoting or facilitating” the commission of a crime, 18 Pa.C.S.A. Sec. 903(a), we have held that direct proof of an agreement is not required. Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982). The conduct of the parties and the circumstances surrounding such conduct may create a “web of evidence” linking the accused to the alleged conspiracy beyond a reasonable doubt.

Among the circumstances relevant, but not sufficient by themselves, to prove a corrupt confederacy are (1) association between alleged conspirators, ...; (2) knowledge of the commission of a crime, ...; (3) presence at the scene of the crime, ...; and (4) in some situations, participation in the object of the conspiracy,____

Commonwealth v. Cooke, 342 Pa.Super. 58, 63, 492 A.2d 63, 68 (1985) (citing Commonwealth v. Anderson, 265 Pa. Super. 494, 402 A.2d 546 (1979)).

Trial court established, inter alia, that both men approached Ms. Tate, walked behind her, and pushed her to the ground. The unknown assailant placed his hands over her face and mouth, searching her clothing for money, while appellant stood nearby. After the robbery, the two men left together. On these facts, we find that the trial judge reasonably concluded that there was a sufficient “web of evidence” linking appellant to the conspiracy.

Judgment of sentence affirmed.

ROWLEY, J., concurs in the result.

      . 18 Pa.C.S.A. Sec. 3701.

      . 18 Pa.C.S.A. Sec. 903.

      . 18 Pa.C.S.A. Sec. 2701.

      . 18 Pa.C.S.A. Secs. 901, 3921.

      . The court found that the simple assault and attempted theft convictions merged with the robbery bill for sentencing purposes.

      . 18 Pa.C.S.A. Sec. 2301 defines “serious bodily injury” as "bodily injury which threatens a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

      . Although the victim did not testify specifically that appellant touched her, the fact that assailants did not inflict serious bodily harm or that they were unsuccessful in obtaining the victim's money has no bearing on the conviction. An “aggressive act" intended to place the victim in fear of immediate serious bodily injury is sufficient to elevate an attempted theft to robbery. Commonwealth v. Leatherbury, 326 Pa.Super. 179, 473 A.2d 1040 (1984).

      . A person is guilty of simple assault if he: "(3) attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S. Sec. 2701(a)(3).

      . Although appellant presented an alibi defense at trial, the lower court concluded that the eyewitness testimony provided by complainant far outweighed the alibi testimony of appellant’s witnesses. Appellant maintains his alibi defense on appeal, yet he concedes that the Commonwealth’s evidence places him at the scene of the crime. These are contradictory positions. Because we are satisfied that the trial judge correctly decided this issue, we decline to address it further. See Commonwealth v. Jellots, 277 Pa.Super. 358, 419 A.2d 1184 (1980) (en banc) (identification evidence sufficient despite alibi testimony).


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    512 A.2d 1276
    COMMONWEALTH of Pennsylvania v. Lynne Mary Dodson TANUR, a/k/a/ Lynn Tanur, Lynne Tanur, Lynne Dodson, Carol Schwartz, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed: July 16, 1986.

      Carolann A. Young, Somerset, for appellant.
    David J. Flower, Assistant District Attorney, Somerset, for Com., appellee.
    Before KELLY, MONTGOMERY and HESTER, JJ.
   KELLY, Judge:

A criminal complaint was filed on March 30, 1984 before the Somerset County District Magistrate charging defendant/appellant with several counts of violation of the Controlled Substance, Drug, Device and Cosmetic Act. Bond was set at ten thousand dollars ($10,000.00).

Defendant, residing in Allegheny County, voluntarily appeared before an Allegheny County District Magistrate to submit to process of a warrant for her arrest issued by Somerset County authorities, A cash percentage bail of 10% of the above amount, or one thousand dollars ($1,000.00), was required for defendant’s release. Defendant was unemployed and without income; she requested that her mother, Mrs. Evelyn Dodson, obtain the cash to secure her release. Mrs. Dodson, a recent widow, used some of the insurance proceeds from her husband’s life insurance policy for the bail money. Ms. Tanur, the defendant, took the money from her mother, handed it to the clerk of the court and signed the deposit slip for the bail. She then turned the deposit slip over to her attorney, and was released pending further proceedings.

Ms. Tanur attended all of her scheduled court appearances. She pleaded guilty at trial in Somerset County to several of the original counts; the remaining charges were nolle prossed by agreement with the District Attorney. The defendant was sentenced on June 3, 1985 to a term of imprisonment, fines, restitution and court costs.

The Commonwealth filed a Petition on June 21, 1985 to Dispose of Bond. The net amount of the bail on deposit with the Clerk of Courts was nine hundred and ninety dollars ($990.00); ten dollars had been deducted to cover administrative costs. The Commonwealth sought to have the remainder used to cover defendant’s fines, restitution and court costs. An evidentiary hearing was held on July 24, 1985; defendant and her mother testified as to their opposition to having the bail utilized for the criminal penalties. They contended that since the money deposited originally belonged to Mrs. Dodson and not the defendant, the money should be returned to Mrs. Dodson. The Commonwealth presented no witnesses. On September 10, 1985 Judge Coffroth issued an Opinion and Order granting the Commonwealth’s Petition. The appeal to this court followed. For the reasons stated below, we affirm.

The central issue before us on appeal is the definition of “depositor” of the bail money, as depositor is used in the rule, Pa.R.Crim.P. 4015.

Rule 4015. Receipt for Deposit; Return of Deposit
(a) The issuing authority or the clerk of the court who takes a deposit of bail other than a surety bond, shall furnish to the depositor an itemized receipt of such bail, and note on the transcript or docket the amount deposited, and by whom deposited. When the issuing authority takes such deposit of bail, he shall deliver it with the transcript to the clerk of the court, who shall place such deposit in a bank or other depository approved by the court and keep proper records thereof. Upon full and final disposition of the case, the issuing authority or the clerk of the court shall return the deposit promptly after twenty (20) days, less any fees or commissions authorized by law.
(b) When a sum of money equal to a percentage of the full amount of the bail has been deposited, the issuing authority or clerk of court shall return the same to the depositor within twenty (20) days after full and final disposition of the case, less a reasonable charge relating to the costs of administering the percentage cash bail program.

(Emphasis added).

Although the word “depositor” has never been used in previous law on the subject of bail money, prior caselaw did deal with the determination of the identity of the owner of the bail money. In Pennsylvania, under the common law and under the Act of 1921, which codified the common law, the defendant was deemed to always be the depositor of the bail. However, the amending Act of 1925, P.L. 49, 19 P.S. §§ 71-72, provided for return of bail money to “person or persons making such deposit.” Thus courts interpreting the amended Act held that the Act recognized that for the first time such persons providing bail money were not always defendants. Therefore the record should show in each instance the identity of those persons depositing the bail money. Commonwealth v. Popchak, 46 D & C 524 (1942). Pennsylvania Rule of Criminal Procedure 4009, effective 1966, was renumbered Rule 4015 in 1973, and replaced the Act of 1925. The Rule, as reproduced supra, was the first to use the term “depositor” and this Court is the first to be faced with the task of defining “depositor” as used in the Rule.

Black’s Law Dictionary defines “depositor” simply as one who makes a deposit. Black’s Law Dictionary 396 (5th Ed.1979). “Deposit” is defined as “____money lodged with a person as an earnest or security for the performance of some contract, to be forfeited if the depositor fails in his undertaking.” Id. at 394-5.

In the instant case the lower court held an evidentiary hearing after the Commonwealth entered its Petition, to consider defendant’s claim that Mrs. Dodson was the depositor. At that hearing both the defendant and her mother testified that Mrs. Dodson handed the money to the defendant who then gave the money to the clerk and signed the deposit slip. (N.T. 8/13/85, p. 8, 11). This evidence is unequivocal. The bail money deposited on defendant’s behalf was deposited by the defendant herself. Moreover, the record includes the original Certification of Bail and Discharge papers where the defendant’s signature is shown, but the space where Mrs. Dodson might have signed as depositor of the bail is blank. Defendant’s trial counsel was present; in fact, defendant handed counsel her copy of the deposit papers. Counsel was present to insure defendant’s interests were protected, including defendant’s interest in the money deposited. We can only wonder why counsel did not advise defendant and Mrs. Dodson that Mrs. Dodson might sign the bail deposit form when she had the opportunity to do so if the bail money was to be returned to Mrs. Dodson. Nonetheless, we hold defendant, as the only person to hand over the money and the only person to sign the deposit slip, to be the depositor.

To reach any other result would lead to absurd and needlessly complicated future outcomes. For we would be deciding that despite the clear evidence of the record, as agreed to by both defendant and her mother, bail money could be returned to someone other than the depositor of record. Clearly, the statute’s purpose is best served not by a legal determination as to the possible property interest persons may hold in the money supplied for bail, but by a factual conclusion as to who lodges the money with the court. The statute provides that the court should keep a record as to who deposits the funds. To go beyond the unequivocal record would be to ignore the clear language of the statute, creating ambiguity where none existed previously.

Furthermore, it is our duty to interpret the statute in the most logical and efficient manner for future applications, Pa.R.Crim.P. 2. We would only open the Court’s record keeping process to attack and dispute from parties whose interest may be biased by their desire to regain the bail money free from a defendant’s obligations to the Court. We agree with the trial court that: “(t)he problem of credibility is aggravated in cases of this kind where the defendant and the third party claimant alone know all the details of the arrangement between them respecting the bond money, and are not adversaries before the court, and instead are in league pressing for return of the money____” (Trial Opinion at 10). Therefore, for all the above stated reasons, we hold that the depositor is the person who signs the deposit slip and is recorded as doing so by the clerk of the court accepting the bail money. In this case the depositor was Ms. Tanur, the defendant.

Defendant, on appeal, urges that we consider the holding in Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978) as necessitating reversal in this case. Although our courts have not defined “depositor”, the Supreme Court, in McDonald, remanded a case to the court of common pleas for an evidentiary hearing to determine “whose money was actually deposited on McDonald’s behalf, the record being equivocal on this point.” McDonald, 476 Pa. at 222-223, fn. 5, 382 A.2d at 126, fn. 5. The Supreme Court noted that although McDonald originally petitioned the Court to return the bail deposit directly to him, defendant’s counsel later requested the money be returned to defendant’s sisters. McDonald, 476 Pa. at 220, 382 A.2d at 125. The trial court refused to hear evidence from McDonald’s sisters, thus ere-ating confusion on the record as to who actually deposited the bail.

The trial court herein held a hearing in conformity with McDonald procedures to clear up disputes arising after the deposit of the bail money with the lower court. Unlike McDonald, however, the testimony unanimously demonstrates that defendant personally deposited the money and signed the deposit slip, and accordingly the record shows no ambiguity or equivocation on this point. Moreover, the trial court determined, that the mother’s act in supplying the cash for defendant’s bail was in the nature of a gift or a loan due to: (1) the intent demonstrated by Mrs. Dodson; and (2) the fact that Mrs. Dodson chose to give the money to defendant rather than to the Court directly.

It is axiomatic that findings of the lower court as to facts will not be disturbed on appeal, absent abuse of discretion or error of law; however this Court on review is free to draw its own conclusions and inferences from the facts and to disregard the lower court’s legal conclusions. See Min-teer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982); First Pennsylvania Banking & Trust Co. v. Liberati, 282 Pa.Super. 198, 422 A.2d 1074 (1980).

Pertinent sections of the direct examination of Miss Ta-nur demonstrate the intent of the parties:

Q. Was it your expectation that at the completion of these proceedings, that that money would be returned to you if possible?
A. Yes.
Q. Would it be returned to you as your money or returned to you to give to somebody else?
A. To give back to my mother.

(N.T. 8/13/86, p. 6) (Emphasis added). Mrs. Dodson testified at the hearing:

Q. Did you give the sum to the District Justice or did you give it to your daughter?
A. I gave it to Lynn to take care of.

(N.T. 8/13/85 p. 11) (Emphasis added). From this testimony we find ample evidence with which to concur with the lower court that Mrs. Dodson delivered the money to her daughter and not to the Court with the express expectation of being repaid by her daughter and not by the Court. Thus, Mrs. Dodson made a loan to her daughter of the one thousand dollars ($1,000.00).

Order affirmed and jurisdiction relinquished.

      . 35 P.S. Section 780-113(a)(12), (16).

      . Defendant/appellant is now represented by other counsel; trial counsel was not contacted in order to ascertain the whereabouts of the original deposit slip. (N.T. 8/13/85, p. 2-3)

      . Although the trial court's opinion addressed the issue as to whether a defendant’s fines and court costs may permissibly be deducted from defendant’s bail deposit under Rule 4015, that issue was not argued in the brief submitted by defendant on appeal. Accordingly, we note this remains an undecided issue. See, Accord, McDonald, supra, 476 Pa. at 222-223, fn. 5, 382 A.2d at 126, fn. 5.

      . Defendant poses the question on review as follows:
      Where the record is devoid of facts regarding bail, but uncontradict-ed testimony at the hearing on Petition to Dispose of Bond shows that a cash percentage bail in the amount of One Thousand and no/100 ($1,000.00) Dollars was made by defendant before a District Justice in Allegheny County with funds of her mother, and a receipt therefore was issued to defendant, must the Court of Common Pleas return the bail to the depositor, less administrative costs, upon successful completion of the conditions of the bail?
      We agree that the bail should be returned to the depositor, but note that defendant’s argument is addressed to the contention that the depositor was Mrs. Dodson, and not the defendant. Therefore our analysis must either affirm or reverse the lower court’s determination that Ms. Tanur is the depositor. For the reasons stated infra, we affirm.


author: WATKINS, Judge:

text:
    512 A.2d 1280
    Herbert F. BETTS, Appellant, v. STROEHMANN BROTHERS.
    Superior Court of Pennsylvania.
    Argued April 23, 1986.
    Filed July 28, 1986.

      Norman M. Lubin, Williamsport, for appellant.
    Richard H. Roesgen, Williamsport, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Lycoming County and involves plaintiff-appellant’s appeal of an order from the court below which granted defendant’s preliminary objections in the nature of a demurrer to plaintiff’s complaint. Plaintiff alleged that he was wrongfully discharged from the defendant’s employment by defendant.

Plaintiff’s complaint alleged two theories of wrongful discharge by his employer. His first theory is based upon an oral contract of employment which he alleges implied long term employment. His second theory alleges that the termination of his employment was tortious and wrongful. In support of this theory plaintiff alleges that his employer was malicious, capricious and abusive in his termination of plaintiff’s employment and that his employment was terminated without “just cause”. The court below granted defendant’s demurrer to the complaint and the plaintiff took the instant appeal.

Plaintiff alleges that in August of 1982 he was hired in a part-time capacity by defendant as a baker’s helper. He claims that defendant made an oral promise to him that he would not work one year without being offered full-time employment. During the period of his employment plaintiff worked an average of 40 hours per week for the defendant. His employment was terminated after April 23, 1984. Plaintiff claims that he understood that his employment was to be long term. He sets forth no specific time period for which he was to be employed.

Absent a specific statutory or contractual provision, an employment relationship is terminable by either party at any time for any reason. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Where the employee is under no obligation to continue the employment, there is no quid pro quo for an employer’s obligation to maintain the employment for a certain length of time. Lucacher v. Kerson, 158 Pa.Superior Ct. 437, 45 A.2d 245 (1946), affirmed 355 Pa. 79, 48 A.2d 857 (1946). An intention to offer a specific tenure of employment is not inferable from an employer’s statement, verbal or written, that employees would not be terminated so long as they performed their work in a satisfactory manner. Banas v. Matthews International Corp. 348 Pa.Superior Ct. 464, 502 A.2d 637 (1985); Richardson v. Charles Cole Memorial Hospital, 320 Pa.Superior Ct. 106, 466 A.2d 1084 (1983). Nor has Pennsylvania ever adopted the “just cause” standard which would restrict an employer’s right to terminate the employment of an employee only for reasons constituting “just cause”. Thus, unless the employee furnished a consideration in addition to his mere services, he is an employee-at-will and his employment may be terminated at any time for any reason. In the instant case, plaintiff has alleged nothing which would render his status different from an employee-at-will. He has alleged no promise of any specific period of employment. Nor has he alleged any consideration in addition to his services which could change his status. As such the court below acted properly when it granted the demurrer to the counts in his Complaint which alleged a violation of an oral contract.

Plaintiff’s second contention is that his employer committed a wrongful act or tort when it discharged him. In supporting this theory, plaintiff claims facts in his complaint which, if taken as true, (as we must for purposes of ruling in the demurrer, see, Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976)), would establish that the defendant had no legitimate or proper reason for terminating plaintiff’s employment and that his discharge violates “public policy”. In Geary, supra, our Supreme Court recognized the principle that even an employee-at-will may have a legitimate cause of action against his employer if his discharge threatens clearly mandated public policy. However, in Cisco v. United Parcel Services, Inc., 328 Pa.Superior Ct. 300, 476 A.2d 1340 (1984), a two-part test was established to determine whether the discharged employee could recover damages against an employer for wrongful discharge. First, we must decide whether any public policy is threatened. Second, even if an important public policy is involved a discharge of an employee is lawful if the employer has separate, plausible and legitimate reasons for doing so. Cisco, supra.

Thus, our first task is to decide whether any clearly mandated public policy is involved in the instant case. The only public policy which plaintiff has alleged is that involved “in balancing the employer’s and an employee’s interests”. As stated by the court below:

“Essentially, the plaintiff is arguing that he has a right to be employed at Stroehmann Brothers unless he fails to discharge his duties with care and skill or unless his conduct on the job was detrimental to the interests of the employer. He would have the Court find that an employer violates public policy in discharging an employee who has performed his job well.
“We can discover no public policy, cognizable in the Courts, against the termination of employees who have performed their duties properly. In fact, such an exception to the general rule that a contract for an indefinite period is a contract terminable at the will of either party, would completely envelope the general rule, relegating its remnants to those situations where the employer has cause for dismissing an employee.”

We agree with the court below. The “balance between an employer’s and an employee’s interests” is not a sufficiently specific mandated public policy as to make out a valid claim for relief. In addition we point out that in today’s world, where our economy is engaged in world-wide competition for markets for our products and services, there is a clear public policy to be served by permitting employers more flexibility in deciding upon the constituency of their work force unencumbered by having to prove “just cause” for every employment decision. Finally, we point out again that plaintiff was free to leave the employ of defendant at any time, for any reason. Because plaintiff has not alleged facts which could constitute the violation of any clearly mandated “public policy” in the instant case it is unnecessary for us to enter into any further analysis of this issue.

We hold that the court below also acted correctly when it granted defendant’s demurrer to the courts in plaintiff’s complaint alleging tortious conduct on the part of the defendant.

Order affirmed.


text:
    512 A.2d 1282
    COMMONWEALTH of Pennsylvania, v. William Martin CLARK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1986.
    Filed Aug. 1, 1986.

      Keith Williams, Assistant Public Defender, Doylestown, for appellant.
    Gail Fairman, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence for rape, attempted rape, indecent assault, and simple assault. Post-trial motions were filed and denied. On appeal, appellant alleges that the trial court erred in (1) admitting into evidence the hearsay testimony of a police officer, (2) refusing to allow defense counsel to elicit testimony regarding the victim’s prior sexual conduct, and (3) refusing to give a submitted instruction to the jury. Finding these allegations meritless, we affirm.

In a light most favorable to the Commonwealth, the facts indicate that on July 5, 1984, appellant, upon returning from a bar, observed two young girls as they were walking home from a beach party. After driving past the girls several times, appellant parked his car, hid behind several trees, and grabbed both girls as they walked past him. After a brief struggle, the girls freed themselves and ran. Appellant eventually caught the 16-year-old victim. He threw her to the ground and choked her by twisting her blouse and necklace around her neck. Appellant next demanded that she remove her clothes and, when she refused, he took off her top and kissed her breasts. He then removed his pants and raped the victim. A police officer responding to a call made by the victim’s companion apprehended the appellant after a short chase.

At trial, appellant conceded the charge of assault but denied raping the victim. A police officer testified that immediately following the incident, the victim told him that appellant penetrated her. Later, the victim became uncertain whether penetration occurred. However, at both the preliminary hearing and the trial, the victim positively asserted that appellant had penetrated her. It was deduced at trial that the victim’s uncertainty was a result of her misunderstanding of the legal definition of “penetration.”

I.

Appellant argues that the trial court erred in admitting into evidence the hearsay testimony of Police Officer Com-pás concerning statements made by the victim about whether the appellant had physically penetrated her. We find that such evidence was properly admitted under two exceptions to the hearsay exclusion rule of evidence.

Prior declarations of a witness which are consistent with his present testimony may be entered into evidence under the prior consonant statement exception if it is alleged that the witness’s present testimony has been recently fabricated. Commonwealth v. Ravenall, 448 Pa. 162, 292 A.2d 365 (1972). Although appellant claims no allegation of recent fabrication has been made, we have held that such allegations need not be explicit, but only that the jury be able to infer that a party is imputing a recent fabrication to the witness. Commonwealth v. Gore, 262 Pa.Super. 540, 396 A.2d 1302 (1978). An examination of the trial record indicates that during cross-examination of the victim, defense counsel pursued a line of questioning implying that the assistant district attorney had told the victim to testify that the appellant penetrated her, even if he had not done so. In Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960), the Supreme Court held that where complainant’s testimony was seriously attacked during cross-examination, imputing recent fabrication, the prior consonant statement exception permitted hearsay evidence to be admitted for the purpose of rehabilitating the credibility of the complainant and the veracity of his testimony. In the present case, it would be reasonable for the jury to infer that appellant was imputing a recent fabrication to the victim based on the cross-examination by defense counsel. Consequently, the trial judge properly allowed the hearsay testimony of Officer Compás into evidence.

Additionally, we find that Officer Compas’s testimony was admissible under the “excitable utterance” exception to the hearsay rule. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978) (hearsay testimony of spontaneous declarations by a person suddenly subjected to an unexpected and overpowering emotional trauma, made under circumstances which preclude reflective thought of that occurrence, is admissible). In Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979), we held that hearsay testimony was properly admitted into evidence under the excitable utterance exception where the victim was subjected to a forcible rape and was in a hysterical state of mind when, 15 to 20 minutes after the rape occurred, the victim recounted its details to witnesses. The facts of the present case are strikingly similar and support the same result.

II.

Appellant’s second contention is that the trial court erred in prohibiting defense counsel from cross-examining Dr. Bolitho concerning statements made by the victim about a prior pregnancy. The contention arises due to the victim’s uncertainty as to whether the appellant had penetrated her during the attack. The victim testified that she did not initially know what penetration meant until it was later explained to her by the assistant district attorney. The appellant asserts that if the victim had previously been pregnant, the jury could infer that she had sexual relations before and knew the meaning of penetration. It would then follow, argues appellant, that the victim’s uncertainty as to whether penetration occurred was due to the fact that it had not occurred, thus negating a finding of rape.

We note that control over the scope and manner of cross-examination is within the discretion of the trial judge, whose decision will not be disturbed on appeal in the absence of an abuse of discretion. Commonwealth v. Orlow-ski, 332 Pa.Super. 600, 481 A.2d 952 (1984); Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973) (all aspects of cross-examination such as scope, manner, and length are within sound discretion of trial court).

Appellant’s analysis of this issue is flawed. The meaning of penetration when used in connection with the crime of rape has a legal and technical definition. We agree with the trial judge that it does not follow that simply because a person has engaged in sexual relations, that person understands the meaning of “penetration” as it is defined as an element of the crime of rape. The victim never asserted that she did not know what penetration meant, only that she thought penetration meant sexual intercourse. Once the victim had the legal definition of penetration explained to her, she testified that penetration did occur.

The problem resolved was one of semantics, and the proposed evidence regarding the victim’s past sexual conduct became subject to protection by our Rape Shield Law. The Supreme Court in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), charged all Pennsylvania courts with balancing the probative value of relevant evidence against its prejudicial value in rape cases. In keeping with our opinion in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), the trial court conducted an in camera hearing for the purpose of determining whether the proposed evidence of the victim’s prior sexual activity was relevant and admissible. The trial court concluded that evidence of prior sexual conduct was not relevant to show motive, bias, or to attack credibility, and that the prejudicial value of such evidence outweighted its probative value. The trial court also concluded that the evidence was not relevant to the issue of penetration, since the distinction between complete vaginal penetration and the lesser requirements for legally sufficient penetration had been made clear to the victim. See Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976) (objection was properly sustained to cross-examination of prosecutrix as to her prior sexual experience, either to explore whether she knew what sexual intercourse was or to impeach general credibility). We are satisfied that the trial judge properly denied the admissibility of evidence regarding the victim’s past sexual conduct based on our Rape Shield Law, and that the court did not abuse its discretion in prohibiting defense counsel from seeking such testimony.

III.

Appellant’s final contention is that the trial court erred in refusing to give to the jury a submitted instruction describing police officers as interested witnesses. Broad discretion is vested in the trial judge in his determination of which instructions are to be given to the jury. Furthermore, the law has been clearly stated that if a legally valid requested point for charge is sufficiently and adequately covered in the trial court’s instructions to the jury, it is appropriate to deny the request. Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985) (citing Bohner v. Stein, 316 Pa.Super. 426, 463 A.2d 438 (1983)); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984). Finding that the trial judge instructed the jury on the issue of interest and bias, we are satisfied that the subject was adequately covered.

Judgment of sentence affirmed.

ROWLEY, J., concurs in the result.

      . 18 Pa.C.S.A. Sec. 3121(1), (2).

      . 18 Pa.C.S.A. Sec. 901(a), Sec. 3121(1), (2).

      . 18 Pa.C.S.A.Sec. 3126(1).

      . 18 Pa.C.S.A. Sec. 2701(1).

      . Although appellant challenges the trial court’s refusal to permit cross-examination of Dr. Bolitho, both appellee and the trial judge address the issue in terms of the trial court's refusal to permit cross-examination of the victim regarding the same evidence. While we recognize the existence of this inconsistency, we note that the issue is one involving the admissibility of certain evidence, regardless of which witness would testify to such evidence, and we address the issue accordingly.

      . 18 Pa.C.S.A. Sec. 3104.

      . The Supreme Court, citing with approval Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365, stated in Majorana:

      The rape shield laws are legislative recognitions of the minimal probative value of sexual history and are designed to prohibit, to varying degrees, the travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities, often sordid and sometimes fanciful, of the complaining witness.
      503 Pa. at 609, 470 A.2d at 84.

      . Appellant erroneously relies on Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977), and Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), for the proposition that the defense is entitled to jury instructions that support the defendant’s theory of the case of which there is adequate evidence. Both cases are specifically premised on the existence of an alibi defense. No such defense has been offered in the present case.


author: BECK, Judge:

text:
    513 A.2d 391
    Rose RAGO, Administratrix of the Estate of Christine Anne Sciambra a/k/a Anne Christine Sciambra, Deceased and Anne C. Sciambra, Parent in Her Own Right, Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed July 23, 1986.

      John W. Craynock, Philadelphia, for appellant.
    Fredric D. Rubin, Morrisville, for appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.:
   BECK, Judge:

We are today presented with an issue of first impression: to what extent must a parent rely on the financial support and uncompensated services provided by a child in order to be a “dependent” for purposes of receiving survivor’s benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act).

Consistent with the remedial nature of the No-fault Act, we hold that a claimant must demonstrate on the record an actual dependency but need not show such complete reliance that any finding of independence would negate the finding of dependency. The test is whether the child’s earnings were needed to provide the parent with some of the ordinary necessities to maintain the parent in an established, reasonable standard of living for a person in the parent’s socioeconomic position.

We therefore reverse the trial court’s denial of survivor’s benefits and remand for additional proceedings.

Christine Anne Sciambra was 20 years old at the time of her death. Prior to her death, Christine shared a modest two-bedroom apartment with her mother. Both women worked at Dali-fresh: Christine worked as a seasoner; her mother worked as a packer. Their net weekly incomes were $125 and $103, respectively. With the exception of approximately $20 per week that Christine kept for her own clothes, cosmetics, entertainment, etc., both mother and daughter contributed their entire paychecks to pay for household expenses. The total annual income which they jointly contributed to the household was $10,800. The estimated yearly expenses of the joint household were $11,-020. Neither Christine nor her mother owned an automobile.

On November 25, 1981, Christine was killed in a collision involving a car in which she was a passenger. State Farm Mutual Automobile Insurance Company (State Farm) was the automobile owner’s insurer. Rose Rago (Christine’s sister and estate administratrix) and Anne C. Sciambra (Christine’s mother) sued State Farm for work loss and survivor’s benefits, attorney’s fees and interest pursuant to 40 P.S. §§ 1009.202(b), 1009.202(d), 1009.107(3) and 1009.-106(a)(2), respectively.

State Farm made a lump sum payment of $15,000 in work loss benefits and also paid $4,000 in interest thereon due to its failure promptly to pay the work loss benefits. See 40 P.S. § 1009.106(a)(2). At trial on the remaining claims, the judge denied Ms. Sciambra’s claim for survivor’s benefits, awarded an additional $1,072.38 interest on the work loss claim and awarded $292.50 in attorney’s fees on the work loss claim. Appellants appeal the denial of survivor’s benefits and the allotted attorney’s fees.

Survivor’s benefits under the No-fault Act are limited to $5,000. 40 P.S. § 1009.202(d). Section 103 of the Act, 40 P.S. § 1009.103, defines the terms “survivor” and “surviv- or’s loss” as follows:

“Survivor” means:
(A) spouse; or
(B) child, parent, brother, sister or relative dependent upon the deceased for support. (Emphasis added.)
“Survivor’s loss” means the:
(A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
(B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury,
reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.

As a condition precedent to qualifying for survivor’s benefits under the No-fault Act, all non-spouse relatives must show that they were “dependent upon the deceased for support.” 40 P.S. § 1009.103; Chester v. Government Employees Insurance Co., 503 Pa. 292, 469 A.2d 560 (1983); Midboe v. State Farm Mutual Auto Insurance Co., 495 Pa. 348, 433 A.2d 1342 (1981) (plurality).

We are asked to interpret the statutory language “dependent upon the deceased for support.” 40 P.S. § 1009.-103. The term “dependent” is not defined in the No-fault Act. In construing the concept of dependency, the trial court utilized Black’s Law Dictionary definition of a dependent as “[o]ne who derives his or her main support from another.” Id. at 393 (5th ed. 1979) (emphasis added). The trial court analyzed whether Christine was her mother’s main support and determined she was not.

In determining the meaning of the term “dependent” as it applies to survivor’s claims under the No-fault Act, we are guided by the broad remedial purpose of the No-fault Act, namely, “to establish a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b); Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983); Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980).

We are also cognizant that one basis for the passage of the No-fault Act was the General Assembly’s stated finding that “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways ... is essential to the humane and purposeful functioning of commerce.” 40 P.S. § 1009.-102(a)(3). Given these manifestations of legislative intent in creating the No-fault Act, we conclude that the remedial purpose of the No-fault Act would not be served by limiting the term “dependent” to signify only a person who relied on a decedent either for his or her sole support or for his or her main support. Rather, the legislative intent of the No-fault Act is best furthered by defining “dependent” to include any spouse or relative to whose support a decedent made substantial contributions — whether of financial resources or uncompensated services, 40 P.S. § 1009.103— such that without the decedent’s contributions, the claimant is unable to continue the lifestyle that was made possible through the decedent’s contributions to the claimant’s support. Moreover, we have previously recognized that “if we are to err in ascertaining the intent of the Legislature ..., we should err in favor of coverage____” Crawford v. Allstate Insurance Co., 305 Pa.Super. 167, 170, 451 A.2d 474, 476 (1982) (emphasis in original).

The trial court found that the mother was forced to relinquish her apartment within six weeks of her daughter’s death. Nevertheless, the trial court reasoned that “although she [the mother] found it necessary to reside with her [other] daughter, Mrs. Rago [Christine’s sister], following the accident, for emotional and financial reasons, the fact that one salary could no longer maintain a household formerly augmented by two salaries does not warrant a conclusion of dependency.” Trial court opinion at 6. We conclude that the trial court’s interpretation of the word “dependent” does not comport with the legislative intent expressed in the No-fault Act.

We now consider whether under the facts of the present case, Ms. Sciambra was dependent upon Christine for support. Neither Ms. Sciambra nor Christine was the sole support or the main support of the other. Instead, the two were interdependent in that each supported and was supported by the other. The facts of record show that Christine’s assistance and financial support provided her mother with some of the ordinary necessities for her mother’s modest and reasonable living standard consistent with persons in her socioeconomic position. The record also evidences that Ms. Sciambra was unable to maintain her modest lifestyle in the absence of Christine’s support. Therefore, Ms. Sciambra was dependent on her daughter Christine for purposes of entitlement to survivor’s benefits under the No-fault Act, and we accordingly reverse the trial court’s order and remand for a determination of the proper benefits, Wercoch v. Liberty Mutual Insurance Co., 287 Pa.Super. 45, 429 A.2d 712 (1981), and interest thereon. 40 P.S. § 1009.106(a)(2); Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981).

Having determined that Ms. Sciambra is entitled to survivor’s benefits, we turn to the remaining issue regarding the award of reasonable attorney’s fees. In this respect, appellant Rago as administratrix of Christine’s estate, presents two theories.

Appellant’s first argument is that the court erred by not awarding fees for the period of State Farm’s delay in paying work loss benefits after the Superior Court decision in Freeze v. Donegal Mutual Ins. Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), but before the Pennsylvania Supreme Court’s review of the same case, Freeze v. Donegal Mutual Ins. Co., 504 Pa. 218, 470 A.2d 958 (1983). The trial court did award fees for the four-month period of delay following the Supreme Court decision. Appellant, however, urges that the Superior Court decision, rather than the Supreme Court decision, is the proper starting point for calculating State Farm’s delay in payment and hence for determining the period for which attorney’s fees could be awarded. We disagree with appellant.

Attorney’s fees are awarded where an insurer has, without a reasonable foundation for doing so, denied payment of a claim made pursuant to the No-fault Act. 40 P.S. § 1009.107(3). An insurer lacks a reasonable basis for denying a particular claim if an appellate court has already held that such a claim is payable. As we explained in Baker v. Aetna Casualty and Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), and Hiers v. Keystone Insurance Co., 308 Pa.Super. 288, 454 A.2d 134 (1982), when

the liability of insurance companies to pay certain benefits has been determined by an appellate court’s construction of the No-fault Act, and an insurance company subsequently denies those benefits to a claimant entitled, under the statute as interpreted by the court, to the benefits, the claimant shall be awarded reasonable attorney’s fees as provided in section 1009.107 of the No-fault Act.

Baker, 309 Pa.Super. at 93, 454 A.2d at 1098.

Thus, in general, attorney’s fees are granted where an insurer has refused a claim after the Superior Court has filed an opinion holding the claim payable. Baker; Hiers. The rationale for awarding attorney’s fees in this context is that unless and until a Superior Court decision is overruled by the Supreme Court, the Superior Court decision constitutes the law of Pennsylvania with regard to the subject matter of the decision. Baker.

However, the general rule has an exception. Where an issue under the No-fault Act is accorded review by the Pennsylvania Supreme Court, the insurer can assert that it possessed a reasonable basis for denying benefits before the Supreme Court rendered its decision. Wingeart v. State Farm Mutual Automobile Insurance Co., 340 Pa.Super. 420, 490 A.2d 849 (1985) (“[t]he fact that the supreme court chose to consider the issue and discussed it at length even after the superior court’s prior decision, indicates that we should not find a lack of reasonable foundation”); Baker (“[t]he fact that our supreme court chose to consider the issue ..., that there were amicus briefs on both sides of the argument, and that Justice Nix’s written opinion analyzed and resolved the question for the supreme court, signifies that we should not find a lack of reasonable foundation”). In Wingeart, we specifically held that attorney’s fees should not be awarded where the insurer denied an estate’s claim for work loss benefits after the Superior Court’s decision, but before the Supreme Court’s decision, in Freeze. Our court’s holding in Wingeart controls the resolution of appellant’s first contention regarding attorney’s fees; hence, we conclude that State Farm’s denial of appellant’s work loss claim pending the Supreme Court’s decision in Freeze was not unreasonable. Accordingly, the trial court properly determined that appellant was entitled to attorney’s fees only for the period following the Pennsylvania Supreme Court’s decision in Freeze.

Appellant’s second argument for augmented attorney’s fees is that appellant’s counsel should receive a fee award for counsel’s efforts to have State Farm compute the interest owed to appellant on overdue work loss benefits by figuring the amount of interest due on a lump sum payment of work loss benefits rather than that due on monthly accrued payments of work loss benefits. Our analysis is again premised on the principle that attorney’s fees are awarded only where the insurer has “denied the claim or any significant part thereof without reasonable foundation.”, 40 P.S. § 1009.107(3). The trial court determined that disparate holdings in two appellate court decisions concerning payment of work loss benefits provided a reasonable foundation for State Farm’s refusal to calculate interest on a lump sum payment instead of monthly accrued payments. We agree.

In its October 14, 1983, en banc opinion in Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), the Superior Court unanimously held that under the No-fault Act, post-mortem work loss benefits were payable in a lump sum to a victim’s survivors. The Superior Court expressly overruled two of its earlier decisions, Baker and Wercoch, to the extent that they had suggested that postmortem work loss benefits should be paid in monthly ac-cruements as if the victim had lived. See P.S. § 1009.-106(a)(1).

On December 30, 1983, two months after the Superior Court’s Antanovich opinion was filed, the Pennsylvania Supreme Court decided Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983). While Kam-peris involved solely a question of the appropriate date on which the statute of limitations would begin to run for commencing an action under the No-fault Act, see 40 P.S. § 1009.106(c), some of the language in Kamperis intimated a preference for monthly accrued benefit payments rather than a lump sum benefit payment. The Supreme Court emphasized in Kamperis that the No-fault Act

clearly looks to a continuing series of losses with each failure of a victim to receive his or her normal financial remuneration for work the victim could have performed had the accident not rendered the victim unable to work---- ‘No-fault benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as ... work loss ... is sustained.’ 40 P.S. § 1009.106(a)(1). Thus, it is clear that work loss is sustained each time a victim suffers economic detriment, or, as in the case at bar, misses a paycheck he would ordinarily have earned, but for the injuries sustained in the accident.

Id., 503 Pa. at 540, 469 A.2d 1384.

On February 10, 1984, less than two months after deciding Kamperis, the Pennsylvania Supreme Court granted a petition for allowance of appeal from the Superior Court’s en banc ruling in Antanovich. Approximately two months thereafter, on April 23, 1984, State Farm gave appellant a $15,000 lump sum payment which represented the No-fault Act’s statutory maximum work loss benefits. On that same date, State Farm also paid appellant interest on the $15,000 work loss benefits because the $15,000 payment was overdue as defined by section 106 of the No-fault Act and thus interest was owed. 40 P.S. § 1009.106(a)(2). However, State Farm calculated the amount of interest due by assuming that the work loss benefits had become payable in monthly accruements. See Kamperis.

Given the Pennsylvania Supreme Court’s decision to review the Superior Court’s Antanovich opinion, see discussion supra of Wingeart and Baker, and the seemingly unsettled state of Pennsylvania’s law as evidenced by the apparent incongruity between the Superior Court’s Antano-vich holding and the Supreme Court’s Kamperis analysis, see, e.g., Kirsch v. Nationwide Insurance Co., 532 F.Supp. 766 (W.D.Pa.1982); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 467 A.2d 324 (1983), we conclude that State Farm did not lack a reasonable foundation for computing interest on the basis of the monthly accrued benefits payable. Therefore, the trial court properly denied an award of attorney’s fees based on appellant’s assertion of an unlawful interest computation.

The order of the trial court is reversed in part and affirmed in part. That portion of the trial court’s order denying survivor’s benefits to appellant Sciambra is reversed, and the case is remanded to the court of common pleas for a determination of the amount of survivor’s benefits payable and the interest due thereon. In all other respects, the trial court’s order is affirmed. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, 40 P.S. §§ 1009.101-.601, repealed by the Act of February 12, 1984, P.L. 26.

      . The trial court noted that neither Ms. Sciambra nor Christine declared the other as a dependent on federal income tax forms. However, we do not regard that fact as controlling. The purposes of the Internal Revenue Code and the No-fault Act are dissimilar. The dependency criteria of the Internal Revenue Code concern only the availability of a deduction for federal income tax whereas the dependency criteria of the No-fault Act concern the desirability of compensating a class of individuals for loss suffered as a result of a vehicular accident. See discussion, supra, of the purpose and expressed legislative intent underlying the No-fault Act.

      . Overruled, on other grounds, Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff’d, 507 Pa. 68, 488 A.2d 571 (1985).

      . Because we hold that Ms. Sciambra was a dependent and thus was a survivor entitled to survivor's benefits, we remand to the court of common pleas for a determination of the amount of survivor’s benefits which Ms. Sciambra should receive. See Wercoch v. Liberty Mutual Insurance Co., 287 Pa.Super. 45, 429 A.2d 712 (1981), overruled on other grounds, Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985).

      . Overruled on other grounds, Antonovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff’d, 507 Pa. 68, 488 A.2d 571 (1985).

      . Under Section 106 of the No-fault Act, "[n]o-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained____” 40 P.S. § 1009.106(a)(2). ‘‘[W]here a payment is overdue as defined by § 106, 18% interest is owed on that payment regardless of the ‘good faith’ of the insurer or the 'reasonable cause’ of the delay.” Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 467 A.2d 324 (1983).

      . The issue of whether work loss benefits and the interest thereon should be paid in a lump sum or in monthly accruements is not before us in this appeal.

      . The Pennsylvania Supreme Court’s decision in Antanovich focused solely on the issue whether a claimant could stack basic loss benefits payable under section 202 of the No-fault Act. In its Antanovich opinion, the Supreme Court did not address the question whether post-mortem work loss benefits should be paid in a lump sum or in monthly accruements since that particular question was not raised before it on appeal. Id. 507 Pa. at 71 n. 3, 488 A.2d at 572 n. 3. Lump sum payments of work loss benefits were endorsed by the Superior Court in other opinions filed after its decision in Antanovich, e.g., Fox v. State Farm Mutual Automobile Insurance Co., 322 Pa.Super. 96, 469 A.2d 199 (1983); Kintz v. Nationwide Mutual Insurance Co., 323 Pa.Super. 3, 469 A.2d 1131 (1983), and in Urland v. State Farm Mutual Automobile Insurance Co., 324 Pa.Super. 241, 471 A.2d 554 (1984), which was filed after the Pennsylvania Supreme Court’s decision in Kamperis. We note that the issue of lump sum or monthly accrued payments was not directly before the Supreme Court in Kamperis.


author: MONTEMURO, Judge:

text:
    513 A.2d 397
    Janet CAPANNA, Administratrix of the Estate of John Capan-na, Deceased; and Janet Capanna, Individually, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed July 24, 1986.

      Richard A. Lefchak, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   MONTEMURO, Judge:

On October 22, 1980, appellant’s husband/decedent, John Capanna, died as a result of injuries suffered when the uninsured automobile which he owned and was operating on that day collided with another vehicle parked along the side of Interstate 95. On May 25, 1983, appellant submitted an application for basic loss benefits to the assigned claims bureau pursuant to the Pennsylvania Assigned Claims Plan (PACP). Appellee, although assigned to process appellant’s claims, has nevertheless refused to pay the claimed benefits.

On April 9, 1984, appellant filed a complaint in assumpsit setting forth three counts. The first count sought basic loss benefits in the nature of work loss benefits, medical expenses, and funeral expenses on behalf of the estate of appellant’s decedent. The second count similarly sought work loss benefits, medical expenses, and funeral expenses yet alternatively on behalf of appellant as a “survivor”. 40 P.S. § 1009.103. The third count sought “survivor’s loss” benefits, id., on appellant’s own behalf. On April 24, 1984, appellee filed preliminary objections to appellant’s Counts I and II in the nature of a demurrer. By an order and opinion dated June 13, 1984, the Honorable Alfred J. DiBo-na, Jr., dismissed the first count in so far as it sought work loss benefits and dismissed the second count in toto. No appeal was taken.

Thereafter, in response to appellee’s June 25, 1984 motion for judgment on the pleadings with respect to appellant’s third count, Judge DiBona dismissed that count by an order dated August 9, 1984. On September 7, 1984, appellant filed the following notice of appeal:

NOTICE OF APPEAL
Notice is given that Janet Capanna, Administratrix of the Estate of John Capanna, Deceased; and Janet Capan-na, individually, plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the final Order entered in this matter on August 9, 1984. Further, notice is given that plaintiff hereby appeals to the said Court from the interlocutory Order entered in this matter on June 13, 1984. (emphasis supplied).

Initially, we note that it is incumbent upon this court to consider the propriety of each appeal. See Indiana County Hospital Authority v. McCarl’s Plumbing & Heating Company, 344 Pa.Super. 226, 496 A.2d 767 (1985). The appealability of an order may be raised sua sponte. Id.

In Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985), Judge Wieand cogently instructed as follows:

An appeal will lie only from a final order unless otherwise permitted by statute. ‘A final order is usually one which ends the litigation or, alternatively, disposes of the entire case ... “Conversely, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” ’ Praisner v. Stocker, 313 Pa.Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa. C.S. § 742. ‘As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.’ Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. This is so because in most such instances ‘the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.’ Id., 313 Pa.Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is ‘out of court’ with respect thereto. Id., 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260.

Id., 347 Pa.Superior Ct. at 80-81, 500 A.2d at 166-67. The question instantly before us is whether Judge DiBona’s June 13, 1984 order was “interlocutory”, as described in appellant’s notice of appeal, or whether in fact that order was final and appealable. If the June 13, 1984 order was final, then appellant’s delay of nearly three months renders the appeal ultimately taken untimely as to that order. See Praisner v. Stocker, 313 Pa.Super. 332, 341 n. 3, 459 A.2d 1255, 1260 n. 3 (1983).

More specifically, the issue to be resolved is whether the June 13, 1984 order precluded appellant from pursuing “separate and distinct causes of action”. See Cloverleaf Development, Inc. v. Horizon Financial F.A., supra, 347 Pa.Super. at 81, 500 A.2d at 166. We find that it did.

The June 13, 1984 order effectively foreclosed both of appellant’s claims to work loss benefits; namely on behalf of her decedent’s estate and on her own behalf. The August 9, 1984 order foreclosed appellant’s discrete claim to survivor’s loss benefits. In his opinion announcing the judgment of the court in Smiley v. Ohio Casualty Insurance Company, 309 Pa.Super. 247, 455 A.2d 142 (1983), our former colleague Judge Robert Van der Voort (since retired) observed:

A work loss benefit is not a form of survivor’s benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.
Survivor’s benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not sustained the fatal injury. 40 P.S. § 1009.103.
Each is a separate type of benefit, the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor’s benefits to reimburse surviving family members for what they would have received had the victim lived. Both may be claimed in a single action. A work loss claim is comparable to a survival action and a survivor’s claim is comparable to a wrongful death action. These conclusions were fully developed in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 190, 401 A.2d 1160 (1979), affirmed, 491 Pa. 447, 457-458, 421 A.2d 629, 636 (1980), and further reaffirmed and clarified in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982). Freeze has been followed in Winegart v. State Farm Mutual Auto Insurance Co., 302 Pa.Super. 524, 449 A.2d 40 (1982), and Reynolds v. Nationwide Mutual Insurance Co., 303 Pa.Super. 31, 449 A.2d 62 (1982); Hartleb v. The Ohio Casualty Insurance Company, 305 Pa.Super. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Company, 304 Pa.Super. 43, 450 A.2d 91 (1982).

Id., 309 Pa.Superior Ct. at 252, 455 A.2d at 145 (emphasis supplied). In so far as work loss benefits and survivor’s loss benefits are clearly separate and distinct in nature, we are of the opinion that claims to these respective benefits must also be viewed as separate and distinct.

We are bolstered in this resolve by the ready comparisons, employed by Judge Van der Voort above, between work loss claims and survival actions and between surviv- or’s loss claims and wrongful death actions. See also Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982); Midboe v. State Farm Mutual Automobile Insurance Company, 495 Pa. 348, 433 A.2d 1342 (1981); Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376 (1984); Daniels v. State Farm Mutual Automobile Insurance Company, 283 Pa.Super. 336, 423 A.2d 1284 (1980); 42 Pa. C.S. §§ 8301, 8302. In Gallick v. United States, 542 F.Supp. 188 (M.D.Pa.1982), the district court, interpreting Pennsylvania law, observed “Although the survival and wrongful death statutes confer a right to recover damages growing out of a single incident ... nevertheless, the rights of action are separate and distinct, and cumulative not alternate.” Id. at 190 (emphasis supplied). See also Martin v. Swift, 258 F.2d 797 (3d Cir.1958); Schwab v. P.J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956).

Accordingly, on their faces and by analogy, the work loss claims presented by appellant’s first and second counts were separate and distinct from the survivor’s loss claim presented by the third count. The June 13, 1984 order in effect put appellant “out of court” with respect to the pertinent claims dismissed thereby and, therefore, that order was in fact final and appealable. To the extent that the instant appeal addresses the June 13, 1984 dismissals, we find that appellant has failed to perfect her appellate rights.

Appellant’s appeal from the August 9, 1984 dismissal of her third count, claiming survivor’s loss benefits, is properly before us. As recently reiterated, we note the following standard of review:

In reviewing an order granting a motion for judgment on the pleadings, we ‘accept as true the opposing party’s well-pleaded averments of fact and consider against him only those facts which he specifically admits.’ Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981). In ascertaining the facts, we must examine only the pleadings and the documents properly attached thereto. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). ‘No affidavits, depositions or briefs may be considered.’ Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324. Judgment on the pleadings will be upheld only ‘ “in cases which are so free from doubt that trial would clearly be a fruitless exercise.” ’ Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324; Balush v. Borough of Norristown, 292 Pa.Super. 416, 437 A.2d 453 (1981).

Spack v. Apostolidis, 353 Pa.Super. 362, 363-364, 510 A.2d 352, 352 (1986).

Appellant contends that the court below erred in dismissing the third count of her complaint on the grounds that her claim for survivor’s loss benefits was not presented to the assigned claims bureau within one year of her decedent/husband’s death. “Survivor’s loss” is defined in the No-Fault Act as:

(A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
(B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.

40 P.S. § 1009.103. We are of the opinion that the court below correctly construed the applicable sections of the No-Fault Act in finding this claim to have been time barred.

In Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, supra, our supreme court held: “Initial claims for survivor’s benefits under the No-fault Insurance Act are subject to a one year limitation under Section 106(c)(2) as were wrongful death damages when the legislature, analogizing to them, passed the No-fault Insurance Act.” 500 Pa. at 177, 455 A.2d at 107. Section 106(c)(2) provides:

(2) If no-fault benefits have not been paid to the deceased victim or his survivor or survivors, an action for survivor’s benefits may be commenced not later than one year after the death or four years after the accident from which death results, whichever is earlier____

Section 108(c)(1) sets forth the time limitations for presenting claims under the PACP and incorporates the time limitations of 106(c) as follows:

(1) Except as provided in paragraph (2) [claims against financially insolvent obligors] of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim, (brackets supplied).

Appellant’s claim for basic loss benefits was submitted to the assigned claims bureau on May 25, 1983, more than two years after her husband’s death. It is therefore clear that, under sections 108(c)(1) and 106(c)(2), her claim was time barred. See Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 467 A.2d 1139 (1983) (upholding the dismissal of an action for No-fault benefits where the assigned claims bureau had not been presented with timely notice of the claim under sections 108(c)(1) and 106(c)(1)).

Appellant seeks to avoid application of the above provisions by arguing that section 106(c)(2) should be construed as encompassing a rule of discovery. Appellant cites Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983), for the proposition that limitation periods under the No-Fault Act do not begin to run until the claimant knows or, in the exercise of reasonable diligence, should have known that a cause of action exists. Appellant specifically argues that, despite her exercise of reasonable diligence, her husband’s uninsured status was not ascertainable until 1983. We find that appellant has read Bond v. Gallen, supra, too broadly. That case involved only the narrow question of whether the two year statute of limitations on tort actions begins to run prior to the claimant’s becoming aware, in the exercise of reasonable diligence, that one of the monetary thresholds of section 301(a) (setting forth the exceptions to the No-Fault Act’s abolition of tort liability) has been reached. Bond v. Gallen, supra, does not construe either section 106 or 108 of the Act and is therefore inapposite to the instant case.

We decline to accept appellant’s invitation to read a qualifying element into the clear time limitation of sections 106(c)(2) and 108(c)(1). We find the following statement from Smiley v. Ohio Casualty Insurance Company, supra, to be instructive:

As we read the various time limitations contained in No-fault section 1009.106(c), we sense an attempt to cover all possible claims under the No-fault Act and to establish an interrelationship between the several sentences which state those limitations. Despite the fact that at least two situations have arisen which were not covered by the Act and, therefore, fell under the general six-year limitation relating to contract actions, Wright v. Allstate Insurance Co., 271 Pa. Superior Ct. 559, 414 A.2d 395 (1979), [overruled by Sachritz v. Pennsylvania National Mutual Casualty Ins. Co., supra ] and Guiton v. Pa. National Mutual Casualty Insurance Co., 301 Pa. Superior Ct. 146, 447 A.2d 284 (1982), we should not strain statutory language to increase the number of such unintended exceptions.

309 Pa.Super. at 257, 455 A.2d at 148.

Appellant next argues that, pursuant to section 106(c)(4), she was entitled to notice from appellee of its rejection of her claims to benefits and to an additional sixty days after receipt of that notice to bring an action against appellee. Section 106(c)(4) provides a special time limitation for assigned claims cases:

[A]n action by a claimant on an assigned claim which has been timely presented in accordance with the provisions of section 108(c) of this act may not be commenced more than sixty days after the claimant receives written notice of the rejection of the claim by the restoration obligor to which it was assigned. (Emphasis supplied and footnote omitted).

Appellant contends that since she has never received written notice of appellee’s rejection of her claims for basic loss benefits, the sixty day grace period renders the third count of her complaint timely initiated. We disagree.

It is plain that section 106(c)(4) comes into play only if the original claim has been timely presented to the assigned claims bureau in accordance with section 108(c). The case upon which appellant relies, Warren v. Reliance Insurance Co., 318 Pa.Super. 1, 464 A.2d 487 (1983), clearly holds that a claimant is entitled to written notification of rejection by the assigned claims obligor, and then to a sixty day period from that notice within which to bring an action, only if the claimant has filed a timely claim with the assigned claims bureau pursuant to section 108(c). Since appellant’s claim was not timely presented to the assigned claims bureau, we find her argument to be without merit.

Appellant’s final contention is that the trial court erred in refusing to grant her leave to amend her complaint. The right to amend should generally be allowed where a defect in pleadings can be cured. See Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979). However, we have been unable to discover, and appellant has failed to offer, any possible amendment to the complaint with which appellant could have cured her third count’s defect. We accordingly find no abuse of discretion on the part of the court below. See Klein v. Raysinger, 302 Pa. Super. 248, 448 A.2d 620 (1982), aff'd and remanded, 504 Pa. 141, 470 A.2d 507 (1983).

In light of the foregoing discussion, we dismiss appellant’s appeal from the June 13, 1984 order of the court below. We affirm the order dated August 9, 1984.

Appeal from the June 13, 1984 order is dismissed. August 9, 1984 order is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, art. I, § 108, 40 P.S. § 1009.108 (repealed).

      . Appellant also relies on Rigotti v. J.C. Penney Casualty Ins. Co., 13 Pa.D. & C.3d 472 (1985). Apart from the fact that Rigotti is not compelling authority, that case involved section 106(c)(1) (applicable to losses arising other than from death) rather than section 106(c)(2)(applicable to actions for survivor’s benefits). Unlike section 106(c)(2), section 106(c)(1) does contain language encompassing a period of reasonable diligence in ascertaining "that the loss was caused by the accident.”