author: HESTER, Judge:

text:
    655 A.2d 112
    SUN PIPE LINE COMPANY v. TRI-STATE TELECOMMUNICATIONS, INC. and Davis Enterprises, Inc. v. E.A. DESIGN, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc. Pier CIPRIANI and Ann Cipriani, His Wife, in Their Own Right and As Parents and Natural Guardians of Michael Cipriani, David Cipriani and Tricia Cipriani, Minors and Robert Leipholt and Susan Leipholt, His Wife, in Their Own Right and as Parents and Natural Guardians of Michael Leipholt, Melissa Leipholt and Jennifer Leipholt, Minors, and James J. Rowley and Gloria Rowley, His Wife, and John M. Atkins and Kathleen M. Atkins, His Wife, and George F. Hepp, Jr. and Marylynne Hepp, His Wife, and Pat G. Morales, Jr. and Divina Morales, His Wife, and George S. Hartman and Martha Hartman, His Wife, and Joseph P. Adams and Charlotte Adams, His Wife and Richard Foley and Jayne Foley, His Wife, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Inc. v. E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc. SUN COMPANY, INC. and Sun Pipe Line Company v. Harold DAVIS and Roger Davis v. E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts and Summerson, Inc. and Tri-State Telecommunications, Inc. Appeals of SUN PIPE LINE COMPANY and Sun Company, Inc. Appeals of E.A. DESIGN, LTD.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Dec. 28, 1994.
    Reargument Denied March 2, 1995.

      Bruce J. Chasan, Kenneth Scott, and Albert M. Saltz, Wilson, Elser, Moskowitz, Edelman and Dicker, Philadelphia, for Sun Pipe Line Co. & Sun Co.

      Mitchell S. Pinsley, Philadelphia, for E.A. Designs, Ltd. & PA One Call Systems, Maple Shade Cable Co. and Newtown Twp. & Newtown Cablevision, Inc.
    Gary Gremminger, Philadelphia, for Jan Gouza, Pickering Corts &'Summerson, Inc. and Tri-State Telecommunications, Inc.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Sun Pipe Line Company and Sun Company, Inc. (collectively “Sun”) appeal and E.A. Design, Ltd. (“Design”) cross-appeals from two judgment orders entered in these consolidated civil actions. The first order was entered on December 29, 1993; the second order was entered on January 25, 1994, and amended the first one. The four appeals were consolidated for our review. Neither appellant has raised any issues relating solely to the December 29, 1993 order; accordingly, we dismiss as moot the appeals from that order. We revise the January 25, 1994 order to provide for post-verdict interest on the total verdict at an annual rate of six percent and to impose joint and several liability as to the entire verdict, including delay damages. In all other respects, the judgment is affirmed.

This action arose as a result of a construction accident which occurred on November 12,1982, during excavation work performed to install cable for a cable television system. The company hired to perform the excavation work by the cable franchisee ruptured one of Sun’s pipelines, and 50,000 gallons of unleaded gasoline spilled into the area.

As a result, a class action was instituted by affected homeowners. The class action was instituted against Sun, and the defendants in that action either initially or eventually included the various entities and persons involved in the design, installation, and approval of the cable system which was being installed when the pipe was ruptured. In addition, Sun instituted a separate action to recover for its damages, including the costs of the gasoline, repairing the rupture, and cleaning up the spill. The action instituted by Sun was consolidated with the class action. Finally, some affected homeowners opted out of the class action and instituted separate actions which never were consolidated with this action.

The trial court certified the homeowners as a class as to the issue of liability for the accident but determined that the damages of each home-owner would have to be established at separate trials. In September and October, 1986, the issue of liability for the accident was submitted to a jury. On October 20, 1986, the jury apportioned liability for the accident as follows: 1) forty percent to Tri-State Telecommunications Inc., which performed the underground cable installation; 2) eighteen percent to Sun, for failing to take appropriate actions to insure against rupture of its pipeline during utility excavation work; 3) fifteen percent to Jan Gouza and his firm, Pickering Corts & Summerson, Inc. (collectively “Gouza”), who was the township engineer responsible for approving the cable network installation plan; 4) fourteen percent to Design, which was hired to prepare the construction maps for the cable network; and 5) thirteen percent to Davis Enterprises, Inc., the owner of the cable franchise. We affirmed this liability determination in Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 574 A.2d 706 (1990).

During the liability phase, Tri-State and Davis settled with Sun for $4,500,000. Gouza has insurance coverage for the incident with limits of $1,000,000, and Design has insurance coverage for the incident with limits of $350,000. Gouza assigned to Sun his bad faith claim against his insurer for its failure to offer its policy limits in a timely fashion to settle the action against him, and in exchange, Sun has agreed not to execute its judgment in the action against him individually.

Design’s insurer offered its policy limits of $350,000, on September 28, 1988. Gouza’s insurer offered its policy limits of $1,000,000 on February 16, 1989. Sun rejected the tender of the policy limits. The class-action case was settled in 1991, and the final opt-out case was settled in October, 1992. The jury trial as to Sun’s damages against the two remaining tortfeasors, Gouza and Design, commenced on December 14, 1992, and on December 21, 1992, the jury awarded Sun $8,080,362.37 in damages, including the following:

1. What do you find to be the fair and reasonable amount of damages incurred by Sun Pipe Line Co. for project management, bioreclamation, air monitoring, laboratory analysis, geological and photography services, well drilling, installation and well closure, purchase, rental and maintenance of scientific equipment, office expenses, cleanup and site maintenance, homeowner damages, lost product, labor costs, long term monitoring and closure costs?
$7,679,500
3. What do you find to be the net fair and reasonable amount of damages incurred by Sun Pipe Line Company for its lost investment opportunity in connection with its purchase of seven homes, the maintenance on those properties, and later resale of those seven homes?
$382,853.

Sun then filed a motion to mold the verdict to reflect the joint and several liability of Design and Gouza for twenty-nine percent of the verdict, in accordance with the liability determination of the previous jury. Sun also filed a motion for delay damages under Pa.R.C.P. 238 and for reasonable expenses under Pa.R.C.P. 4019(d), the rule imposing .sanctions for discovery violations.

On December 29, 1993, the trial court molded the verdict and entered judgment as follows:

JUDGMENT AND ORDER
AND NOW, this 29th day of December, 1993, upon consideration of Sun Pipe Line Company’s Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa. R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury on December 21, 1992 are $8,080,362.37.
2. Additional Defendant EA. Design, Inc., Jan Gouza and Pickering, Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12,1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or $2,227,055.00.
4. Interest on the $2,227,055.00 shall be calculated as follows:
11-12-83 to 12-31-83 rate of 12.5% $ 37,375.55
1-1-84 to 12-31-84 rate of 12% 267,246.60
1-1-85 to 12-31-85 rate of 11.75% 261,678.96
1-1-86 to 12-31-86 rate of 10.5% 233,840.78
1-1-87 to 12-31-87 rate of 8.5% 189,299.68
1-1-88 to 9-28-88 rate of 9.75% 163,009.74
$1,152,447.00
5. Interest on the verdict shall accrue from the date of the verdict at the rate of 6% per annum.
6. Reasonable expenses to be awarded to Plaintiffs, pursuant to Pa.R.Civ.P. 4019(d), not including attorneys fees, are fixed at $74,415.14 pursuant to affidavit of Bruce J. Chasan, Esquire, of March 1, 1993, (paragraph 57).

The trial court then issued a revised judgment on January 25, 1994, as follows:

REVISED JUDGEMENT AND ORDER
AND NOW, this 25th day of January, 1994, upon consideration of Sun Pipe Line Company’s Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa.R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury in its verdict of December 21, 1992 are $8,080,362.37.
2. Additional Defendant E.A. Design, Inc., Jan Gouza and Pickering Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12, 1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or $2,227,055.00.
4. Interest on the $2,227,055.00 shall be calculated as follows:
11-12-83 to 12-31-83 rate of 12.5% 37,375.55
1-1-84 to 12-31-84 rate of 12% 267,246.60
1-1-85 to 12-31-85 rate of 11.75% 261,678.96
1-1-86 to 12-31-86 rate of 10.5% 233,840.78
1-1-87 to 12-31-87 rate of 8.5% 189,299.68
1-1-88 to 9-28-88 rate of 9.75% 163.009.74
$1,152,451.31
5. Interest on the verdict, including delay damages as determined in paragraph 4 hereof, or $2,343,305.00 plus $1,152,451.31 shall accrue from the date of the verdict. Interest shall not accrue on sums awarded for reasonable expenses.
6. Reasonable expenses to be awarded to Plaintiffs, pursuant to Pa.R.Civ.P. 4019(d), not including attorneys fees, are fixed at $74,415.14 pursuant to affidavit of Bruce J. Chasan, Esquire, of March 1, 1993, (paragraph 57). Additional reasonable expenses are awarded to Plaintiffs in the sum of $3,951.36 pursuant to supplemental affidavit of Bruce J. Chasan, Esquire, of April 12, 1993.

Sun filed appeals from both judgments. Design filed cross-appeals from both judgments. In its appeals, Sun raises five issues for our consideration, and Design also raises five issues in its cross-appeals. In order to resolve these appeals in a logical and orderly fashion, we will address all contentions relating to the same matters together.

Before we address the issues, however, we will make two observations. First, it is time to end this matter as it has been twelve years since the accident. In this appeal, we have endeavored to avoid a remand as we have concluded that little or nothing will be accomplished by such action. Enough time in our court system has been consumed.

Second, this has been a complex case, and we believe that the trial court’s final judgment achieves a fair and equitable resolution of the competing equities involved. Contrary to the implication in Sun’s brief, Gouza and Design were not unreasonable in proceeding through the liability phase of this litigation. Their efforts to limit or absolve their own liability, in light of the primary liability of the other parties involved, are completely understandable.

Furthermore, in this appeal, Sun attempts to appear as the innocent, uncompensated victim in this saga, and we do not accept this portrayal. Sun ignores its own fault in the 1982 accident, and the money it already has received. The first jury determined that Sun was more responsible for the accident than Gouza and Design due to the fact it failed to join Pennsylvania One-Call System, and it designated the location of its pipeline inadequately. We affirmed this liability determination in the prior appeal. In addition, Sun recovered $4,500,000, in excess of one-half of its damages, when it settled with Tri-State and Davis. Sun was offered an additional $1,350,000, the policy limits of the insurers, from Design and Gouza by 1989.

The first set of issues concerns the trial court’s assessment of delay damages. Design contends that Rule 238 does not apply to this litigation due to the nature of the action and the type of relief sought by Sun. Rule 238 provides in relevant part (emphasis added):

(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.

Design’s argument as to the applicability of Rule 238 to this action is two-fold. Design begins with the statement that Rule 238 “should not be applicable to indemnity and contribution actions.” Cross-appellant’s brief at 36. It then argues that even if Rule 238 applies to indemnity and contribution actions, it should not be applied to this action, constituting “environmental litigation,” since the purpose of the rule is to eliminate court congestion, and environmental litigation occupies a small percentage of docketed cases. Id. at 40.

Thus, the first part of the argument contains a factual assumption that this case is one of indemnity and contribution. The second argument contains a policy assumption that only cases of a type consuming court time fall within Rule 238.

We reject the first argument because this case is not one involving solely indemnity and contribution. There is no question that this case has a component part that involves indemnification and contribution since Sun recovered for sums expended in repairing the damage caused to the property of people other than itself, the plaintiff-homeowners, and a portion of the damage award is its claim for money due as a result of the class action. To the extent this action does involve Sun’s contribution claims as a joint-tortfeasor, the action does resemble a contract action for money due, wherein Rule 238 does not apply. See, e.g., Reliance Universal, Inc. v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982) (Rule 238 not applicable in contract action); Rizzo v. Haines, 357 Pa.Super. 57, 515 A.2d 321 (1986) (Rule 238 not applicable in legal malpractice action), aff'd, 520 Pa. 484, 555 A.2d 58 (1989); Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117 (1985) (Rule 238 does not apply to an action for malicious prosecution).

However, this action is more than one involving contribution and indemnification. Sun also instituted a separate action for its own property damage caused by the pipeline rupture, and this action was consolidated with that of the homeowners. The trial court assessed delay damages on the $7,679,500, which the jury awarded for the following:

[T]he fair and reasonable amount of damages incurred by Sun Pipe Line Co. for project management, bioreclamation, air monitoring, laboratory analysis, geological and photography services, well drilling, installation and well closure, purchase, rental and maintenance of scientific equipment, office expenses, cleanup and site maintenance, homeowner damages, lost product, labor costs, long term monitoring and closure costs[.]

Thus, the damages are a hybrid award of Sun’s own property damage and its contribution claims as a joint-tortfeasor in the class action. The real issue is whether Rule 238 should be applied in this “hybrid” case. In resolving this issue, we first look to the language of Rule 238 itself, which states that “[a]t the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded.... ”

These actions were instituted by plaintiff-homeowners for personal injuries and property damage. Sun’s consolidated case similarly was instituted for both its property damage consisting of the lost gasoline and pipeline rupture and attendant environmental clean-up costs. Eventually, damages were recovered for Sun’s payments to the homeowners, which are in the nature of contract damages, and for its own property damage. Nonetheless, Rule 238, on its face, applies since these actions were brought for bodily injury and property damage.

In addition, in concluding that Rule 238 is applicable to this action, we are guided by the fact that Rule 238 is designed to remedy two evils. As noted above, Design chose to focus on one, preventing court congestion, in presenting its argument. The second, as Sun notes, involves a substantive right of the prevailing plaintiff. Rule 238 is designed to compensate the prevailing plaintiff for loss of use of funds that the jury verdict reflects were owed by the defendant to the plaintiff. See Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103 (1991) (fundamental fairness requires that plaintiffs receive interest on what is essentially then-money for the period defendants held it until trial). Thus, Rule 238 is designed to award prejudgment interest, which normally was not available in an action involving personal injury and property damage.

Even if delay damages were not recoverable, Sun would be entitled to some form of prejudgment interest.

A review of the case law reveals that the trend of the courts has been to take an equitable approach in determining interest as an element of damages. The Pennsylvania courts have also adopted this approach, and in equity cases, the award and rate of interest allowed is at the discretion of the chancellor. An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case. Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.

Smith v. Mitchell, 420 Pa.Super. 137, 144-145, 616 A.2d 17, 21 (1992) (citations and emphasis omitted).

Therefore, even if this case were construed as one involving purely contract principles of indemnification and contribution, Sun, in fairness and equity, should be compensated for loss of use of the funds. See also Spang & Co. v. USX Corp., 410 Pa.Super. 254, 599 A.2d 978 (1991) (it is up to the discretion of the trial court to award prejudgment interest in a contract action even though plaintiffs recovery was not for liquidated amount). At this point, however, we have no intention of remanding to the trial court for a determination of whether prejudgment interest should be awarded, in light of the unique circumstances of this case, as its award of delay damages fulfills the same purpose.

Whether it is awarded as Rule 238 delay damages or as contractual prejudgment interest, Sun is entitled to be compensated for the fact that it has not had the money the jury determined that it was owed as of 1982. The award of this element of damages hardly can be viewed as “punitive,” as suggested by Design, who has had the benefit of using the money since the 1982 accident. Brief of cross-appellant at 42. Sun’s entitlement to interest also has nothing to do with Design’s pre-1988 good faith efforts to determine its liability. It simply has to do with the fact that Design had the use of this money.

We now discuss Sun’s arguments as to delay damages. On September 28, 1988, Design’s insurer offered its policy limits of $350,000 and on February 16, 1989, Gouza’s insurer offered its policy limits of $1,000,000. The trial court, as noted above, stopped the accrual of delay damages against both parties as of September 28, 1988. Sun suggests that since the verdict against the two defendants, $2,343,305, was more than 125% of the offers, $1,350,000, delay damages continued to accrue until the time of the verdict. We disagree, based upon the series of cases wherein insurers offered their policy limits and the insureds were insolvent. Miller v. Hellman, 433 Pa.Super. 539, 641 A.2d 592 (1994); Krichten v. Wolpert, 431 Pa.Super. 194, 636 A.2d 196 (1994); Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993); Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986).

In those cases, we held that a plaintiff may not be awarded delay damages pursuant to Rule 238 after the date the defendant’s insurer offers its policy limits if the trial court determines that due to the defendant’s indigency, the offer of the policy limits was the full amount available for payment of the plaintiffs claim and it was impossible for the defendant to have offered more.

Sun raises a number of contentions as to the propriety of the trial court’s decision to stop the accrual of delay damages. The first two are that: 1) the trial court should have performed an evidentiary hearing to determine the insolvency of Gouza and Design as of the date of the offer, and 2) the action was improper in the absence of an indication that neither defendant could have offered more.

We reject these arguments. Gouza transferred to Sun his bad faith claim against his insurer, and in exchange, Sun agreed not to execute any judgment which it obtained against' the personal assets of Gouza. See Appellant’s brief at 16. Therefore, whether Gouza is bankrupt or could offer more is totally irrelevant. Gouza is not liable to Sun, and Sun can get nothing more from him. Further, the fact that Design is bankrupt is well documented. See Reproduced Record at 1965a-67a, 1969a-73a; Supplemental Reproduced Record at 76b-90b, 135b-143b. It would be an exercise in futility to remand for an evidentiary hearing on Design’s bankrupt status or ability to tender money. Compare Krysmalski v. Tarasovich, supra (evidence indicated that defendant had personal asset, $60,000 apartment building, which he failed to offer in addition to insurance limits).

Sun also argues that this case is distinguishable from the above line of cases because the liability limits were not offered until after the liability trial. This is a distinction without a difference. The fact is that the full policy limits were tendered to Sun, and it had the immediate right to the money. At that point, it was Sun’s fault it lost the right to the use of that money. Berry and its progeny make no distinction as to what phase of the proceedings the policy limits are tendered. If delay damages have started to accrue, they cease under the reasoning applied in those cases when full policy limits are tendered, and the plaintiff could obtain no further money against the defendant personally. That is what occurred here. If plaintiff can get nothing more than what is offered, there is no purpose in continuing to assess delay damages. The maxim, “Cessante ratione legis, cessat et ipsa lex” applies. Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370, 371 (1980). Sun’s arguments on the amount of delay damages assessed aré rejected.

The next set of issues concerns the application of Pa.R.C.P. 4019(d). Sun argues that it should have been awarded the approximately $475,000 in attorney’s fees it expended in the damages trial as a discovery sanction due to the failure of Gouza and Design to admit to the amount of Sun’s damages, which it outlined in a set of requests for admissions sent to those two parties.

In these requests for admissions, the two defendants were asked to admit not only the amount but the reasonableness and necessity of the costs incurred. R.R. at 1689-1704. Thus, Sun’s request for admissions amounted to a request for an admission to the very issue at the damages trial.

Sun posits, “[Design] and Gouza did not admit any significant portion of [Sun’s] requests for admissions. [Design] and Gouza refused even to admit the amount of [Sun’s] losses despite the fact both [Design] and Gouza were provided with ample opportunity to review and evaluate the expense documents. As a result, [Sun] was required to call a number of witnesses to testify not only as to the necessity and reasonableness of the damages, but also as to the amount of the damages incurred by [Sun.]” Appellant’s brief at 36.

That is what every party has to do at every trial— prove its case. A jury trial cannot be avoided by the promulgation of a set of requests for admissions where a defendant has to agree that plaintiff does not have to meet its burden of proof at the upcoming trial. Sun had a burden of establishing its damages by a fair preponderance of the evidence. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987). In fact, the jury awarded $641,117.08 less than Sun requested in damages, establishing that Design and Gouza were correct in refusing to “admit” to the necessity, reasonableness, and amount of Sun’s damages.

Furthermore, a trial court may not, as a discovery sanction, award general counsel fees incurred during trial, and Sun was not entitled to recover its trial-related attorney’s fees for misconduct in discovery. See Commercial Trading Co. v. Milsan Mills Inc., 327 Pa.Super. 407, 476 A.2d 16, 20 (1984). Only counsel fees incurred as a direct result of the discovery violation should be imposed as a discovery sanction except in the most egregious cases. Id. In our system of jurisprudence, the winning litigant simply is not entitled to attorney’s fees from the losing litigant.

On the other hand, we also reject Design’s claim that the award of $78,366.50 in expenses under 4019(d) was improper. It appears that certain expenses were not contested at trial and that Design and Gouza eventually stipulated as to some of the fees and expense incurred in the clean up during the testimony of the witness called to establish those damages. R.R. at 1074a-1077a. Thus, if Design and Gouza thoroughly answered the requests for admissions by admitting to the portions of the damages which they were not going to contest at trial, Sun could have avoided some expenses at trial.

It is settled that the specific sanction to be imposed under Rule 4019 is a matter left to the discretion of the trial court. Pride Contracting, Inc. v. Biehn, 381 Pa.Super. 155, 553 A.2d 82 (1989). Herein, we defer to the trial court’s assessment that the failure of Design and Gouza to more carefully answer the requests for admissions warranted the imposition of Sun’s trial expenses.

In its appeal, Sun submits that the trial court erred in determining that Gouza and Design were not jointly and severally liable for the delay damages portion of the verdict. In its appeal, Design not only contests this argument, it contends that the trial court erred in not stating explicitly in the order that Design and Gouza are not jointly and severally liable for delay damages. Sun has taken the correct position on this issue. Defendants are jointly and severally liable for delay damages. Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (multiple defendants are jointly and severally liable for entire amount of delay verdict, including damages).

Design suggests that it is not jointly and severally liable for the delay damages based on our holding Jazbinsek v. Chang, 416 Pa.Super. 300, 611 A.2d 227 (1992). In Jazbinsek, we ruled that a settling defendant was not liable for delay damages accruing after the defendant made an offer which operated to toll the accuracy of delay damages. However, the delay damages at issue herein were imposed for the period prior to Design’s offer. It is clear that Design is jointly and severally liable with Gouza for the delay damages imposed.

Finally, both appellants take umbrage with the trial court’s actions with respect to post-verdict interest. Sun’s position is that the trial court, at the least, should have expressly stated in its January 25, 1994 order that post-verdict interest on the award will accrue at six percent a year. Sun also posits that it is entitled to post-judgment interest calculated under Rule 238 rather than merely at the statutory rate of six percent. We accept Sun’s first argument, in light of 42 Pa.C.S. § 8101, and reject its second argument. Pa.R.C.P.

238(a)(2)(i), (ii) (delay damages assessed “up to the date of the award, verdict or decision”); see also Rivera v. Philadelphia Theological Seminary, 398 Pa.Super. 264, 580 A.2d 1341 (1990).

As to post-judgment interest, Design’s position is that post-judgment interest is not assessable on the delay damages portion of the judgment. This is incorrect. Delay damages become part of the verdict, under the express language of Rule 238. Pa.R.C.P. 238 (“damages for delay ... shall become part of the verdict, decision or award”). Post-judgment interest applies to the verdict. 42 Pa.C.S. § 8101 (“a judgment for a specific sum of money shall bear interest at the lawful rate from the date of the verdict or award ... ”). There is nothing unfair or inequitable in requiring Design to pay interest on money which it owes to Sun. However, as the award of expenses as a discovery sanction is not a part of the verdict, the trial court, in its discretion, was permitted to decline to award interest on that amount.

Accordingly, we enter the following order:

The appeals at 573 and 690 are dismissed as moot. The January 25, 1994 judgment is revised to read that Jan Gouza and Pickering Corts & Summerson Inc. and E.A. Designs, Inc. are jointly and severally liable for the $2,343,305.00 verdict and the $1,152,451.31 in delay damages. Judgment also is revised to read that the amount of interest awarded on the verdict of $3,495,756.31 shall be six percent which shall start to accrue as of the date of the verdict. In all other respects, the judgment entered on January 25, 1994, is affirmed.

      . Design also argues that certain periods prior to tender of the policy limits of its insurer are excludable under Rule 238. However, it is clear that none of its claims regarding excludable time fall within the ambit of Rule 238(b), which defines when time is excludable, see brief of cross-appellant at 43-44, and we reject those claims.

      . In light of this, we are puzzled by Design's argument, which is made at page forty-five of its brief, that delay damages were improperly assessed against the lost profit award of $382,853. As indicated clearly in paragraph three of the judgment, the court awarded delay damages only on the $7,679,500 awarded in the first paragraph of the jury verdict. Thus the court did not assess delay damages against Design for the $382,853 awarded for Sun’s lost investment interest.

      . At no point in its brief does Sun argue that Gouza’s delay damages should have ceased as of February 16, 1989.

      . An affidavit of Max Spector, former president of Design, indicates that as of October, 1989, Design had a negative balance sheet of approximately $180,00 and that it went out of business in 1990. It further indicates that throughout the entire course of this action, it had no assets to offer.

      . The reason for the law ceasing, the law itself also ceases.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    655 A.2d 123
    RORER GROUP, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1994.
    Filed Jan. 13, 1995.
    Reargument Denied March 22, 1995.

      James M. Marsh, Philadelphia, for appellant.
    Imelda Terrazina, Chicago, IL, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   OLSZEWSKI, Judge:

Appellant Rorer Group, Inc. counts among its subsidiaries a company, Armour, that manufactures a human plasma derivative called “Albuminar.” The manufacturing process requires mixing human plasma with other organic compounds in mechanically refrigerated pressure vessels. One such pressure vessel at the Armour plant, Vessel 16, has two mechanical refrigeration systems: “(1) a mechanical compressor cools glycol which is circulated by a pump through the hollow between the inner wall and outer jacket of Vessel 16; and (2) a mechanical compressor cools a methyl alcoholethyl alcohol mixture which is circulated by a pump through four (4) hollow baffles [which are attached to the vessel walls at several points] inside Vessel 16 (R-69a-70a).” Brief for appellant at 5.

In October of 1988, Armour discovered an abnormally high level of alcohol in the contents of Vessel 16. After extensive testing, Armour determined that a substantial amount of methanol had leaked into the Albuminar product. Armour recalled a number of batches for decontamination. The company’s investigation revealed that cracks in the baffles had caused the leakage. A subsequent investigation by outside firms revealed that the cracks indeed caused the leaking and that the cracks themselves were caused by corrosion. The corrosion, in turn, was caused by a latent defect in the steel used to manufacture the Vessel itself. Opinion 4/14/94 at 4-5.

Appellant filed suit against its insurance company, appellee Insurance Company of North America, for the amount required to fix Vessel 16 and decontaminate all of the tainted Albuminar. The parties cross-filed for summary judgment. After hearing arguments, the Honorable Albert R. Subers found that the insurance policy did not cover the damage in question as a matter of law. Judge Subers granted summary judgment in favor of appellee. This appeal followed.

Appellant’s main insurance policy, effective July 1, 1988-July 1, 1989, was an all-risk policy, insuring appellant against risk of direct physical loss or damage, except as otherwise excluded. - Opinion 4/14/94 at 2. The policy excluded the following:

12. PERILS EXCLUDED

This policy does not insure against loss or damage caused directly or indirectly by any peril excluded. Such loss or damage is excluded whether contributed to, in whole or in part, by any excluded peril.

}|« j-t 5j« jjs

I. Corrosion, decay, deterioration, erosion, evaporation, inherent vice, latent defect, leakage, loss of weight, marring or scratching, rust, shrinkage, wear and tear, wet or dry rot or any quality in property which causes it to damage or destroy itself;

s|« sjc

U. The cost of correcting or making good:

(1) Error, omission, deficiency in designs, plans, programs or specifications;
(2) Faulty or defective workmanship, materials or supplies; as respects exclusion U., this policy insures any ensuing loss or damage caused by direct physical loss or damage by an insured peril.

R.R. at 23a-26a.

In addition to this main policy, appellant also purchased a Boiler and Machinery Endorsement which extended coverage in specified areas. It stated:

A. This policy is extended to cover the following:

l.a. explosion in or of the following property owned, operated, or controlled by the Insured: (1) steam boilers including equipment attached to and forming a part thereof; (2) steam turbines, steam engines, steam pipes interconnecting any of the foregoing; or (3) gas turbines ...
b. rupture, bursting, cracking, burning or bulging of steam boilers, including equipment attached to and forming a part thereof, steam turbines, steam engines, steam pipes interconnecting any of the foregoing, hot water boilers or other equipment for heating water, pressure vessels, including equipment attached to and forming a part thereof, or gas turbines;
c. mechanical or machinery breakdown, including rupture or bursting caused by centrifugal force;
d. electrical injury or disturbance to electrical appliances, devices, fixture, wiring, or other electrical or electronic equipment caused by electrical currents artificially generated; except loss by fire ensuing therefrom.

R.R. at 32a-33a (emphasis added). Therefore, the policy excluded any loss caused by a latent defect or corrosion, but the Endorsement specifically included any loss caused by cracking. The damage in the instant case was caused by all three: latent defects, corrosion, and cracking.

Appellant first claims' that the Endorsement should be read separately from the main policy, so that the exclusions found in paragraph 12 of the main policy would not apply to the Endorsement. While it is true that the Endorsement was specifically negotiated and separately paid for, it is not a separate contract. The Endorsement clearly stated, “[tjhis policy is extended to cover the following.” R.R. at 32a. This reference to the original policy and the statement that the Endorsement was to serve as an extension of that original policy both indicate that the parties intended one contract. See Heilwood Fuel Co. v. Manor Real Estate Co., 405 Pa. 319, 327-28, 175 A.2d 880, 884 (1961) (primary inquiry in deciding if a contract is separate and distinct is whether the language clearly indicates the intent of the parties). See also Kyle v. McCarron, 201 Pa.Super. 403, 405-07, 192 A.2d 253, 255 (1963) (“[t]he whole policy, including the endorsements, must be considered in determining the liability of the insurance company, and the risk the policy was issued to cover”). Therefore, we agree with the trial court that the Endorsement must be read with the main policy, and the paragraph 12 exclusions apply unless the Endorsement specifically modifies or abrogates them.

The determination of whether an exclusion clause in an insurance policy has been modified or abrogated is a question of law for the court. See Curbee, Ltd. v. Rhubart, 406 Pa.Super. 505, 508-09, 594 A.2d 733, 735 (1991), appeal denied, 529 Pa. 649, 602 A.2d 859 (1992); Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). In making such a determination, the court should read the insurance policy in its entirety and give all words their plain and usual meanings. Curbee, 406 Pa.Super. at 508-09, 594 A.2d at 735; Monti v. Rockwood Insurance Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25 (1982).

In the present case, the plain meaning of the language fails to show that the exclusions for latent defects and corrosion have been modified or abrogated. Paragraph 12 excludes a number of perils, such as corrosion, latent defects, explosion, mechanical breakdown, electrical injury, and rupture or bursting. The Endorsement extends coverage and abrogates the exclusions as to certain perils, such as explosion, mechanical breakdown, electrical injury, and rupture or bursting. It also adds cracking to the coverage, even though cracking was never previously excluded. It does not address, however, and therefore cannot abrogate or modify, the exclusions regarding corrosion or latent defects. We therefore agree with appellee that “where explosion, electrical injury, mechanical breakdown, rupture, bursting, cracking, bulging and like perils listed in the endorsement are caused or contributed to by one of the remaining perils excluded in paragraph 12 (here by latent defect), the resulting loss or damage is not covered under the policy.” Brief for appellee at 22. This result does not, as appellant argues, render the Endorsement a nullity. Any explosion, electrical injury, mechanical breakdown, rupture and the like that are not caused or contributed to by a remaining exclusion are now covered, where they were not before. If we were to read this otherwise, it would completely nullify the remaining paragraph 12 exclusions any time a peril listed in the Endorsement were to occur. In a case such as this, where the parties bargain at arms length, we cannot read the Endorsement as completely erasing all of the exclusions clearly set out in the main policy. As there is no genuine issue of material fact, the trial judge correctly granted summary judgment for appellee.

Order affirmed.

      . Appellant also claims that the language of this policy creates an ambiguity which must be resolved in its favor. However, "language, should not be tortured to create an ambiguity. A provision is ambiguous only if reasonably intelligent persons, considering it in the light of the entire policy, can honestly differ as to its meaning.” Curbee, 406 Pa.Super. at 508-09, 594 A.2d at 735. The language in this policy is not ambiguous. Cracking is covered, so long as it was not caused in whole or in part by an excluded peril.


author: McEWEN, Judge: TAMILIA, Judge, dissenting.

text:
    655 A.2d 125
    Eleanora SORACE, Appellant, v. Salvatore D. SORACE, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1994.
    Filed Feb. 14, 1995.

      Leonard A. Sloane, Jennifer L. Abram, Media, for appellant.

      Richard A. Mitchell, Media, for appellee.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   McEWEN, Judge:

Appellant, Eleanora Sorace, has taken this appeal from the order which dismissed her Petition for Special Relief seeking enforcement of a marriage settlement agreement. We affirm in part, reverse in part, and remand for proceedings consistent with this Opinion.

Appellant and appellee, Salvatore D. Sorace, were divorced by order dated February 26, 1981. A marriage settlement agreement, signed by appellant on June 17, 1982, and by appellee on September 9, 1982, was incorporated into, but not merged with, the divorce decree entered on November 23, 1983. Appellant alleged, and appellee conceded, that on or about December 1990, appellee breached the marriage settlement agreement by refusing to pay any further sums due thereunder, causing appellant to file a Petition for Special Relief with the Court of Common Pleas of Delaware County. The trial court, based on the stipulated facts submitted by the parties, denied the petition for special relief on the ground that the marriage settlement agreement of the parties precluded the relief requested. This appeal timely followed.

Our standard of review in equity actions is well settled: The standard of review of a decision by an equity court is limited. A chancellor’s finding of fact will not be disturbed absent an abuse of discretion, a capricious disbelief of the evidence, or a lack of evidentiary support on the record for the findings. A chancellor’s conclusions of law are subject to stricter scrutiny. Unless the rules of law relied upon are palpably wrong or clearly inapplicable, however, a grant of injunctive relief will not be reversed on appeal. Jersey Shore Area School District v. Jersey Shore Education Association, 519 Pa. 398, 548 A.2d 1202 (1988).

Masloff v. Port Authority of Allegheny County, 531 Pa. 416, 420, 613 A.2d 1186, 1188 (1992). See also: Marra v. Stocker, 532 Pa. 187, 191, 615 A.2d 326, 328 (1992); Sentz v. Crabbs, 428 Pa.Super. 205, 207, 630 A.2d 894, 895 (1993); Pittsburgh Live, Inc. v. Servov, 419 Pa.Super. 423, 428, 615 A.2d 438, 441 (1992) ; Zivari v. Willis, 416 Pa.Super. 432, 435, 611 A.2d 293, 295 (1992).

Appellant contends that the trial court erred in dismissing the petition for special relief since:

1. The trial court may apply the amended provisions of the Divorce Code to a pre-amendment property settlement agreement, and
2. The court may enforce the property settlement agreement which was incorporated into the parties’ divorce decree, using the full enforcement provisions enumerated in the Divorce Code, 23 Pa.C.S. §§ 3101 et seq., as amended.

Having reviewed the terms of the marriage settlement agreement, the pleadings of the parties, and the opinion of the trial court, we find ourselves unable to agree that none of the enforcement provisions of the 1988 Amendments to the Divorce Code are available to appellant. We do agree with the trial court, however, that appellant is not entitled to utilize wage attachment to enforce the terms of the marriage settlement agreement.

Marriage settlement agreements are governed by the law of contracts. delCastillo v. delCastillo, 420 Pa.Super. 520, 522, 617 A.2d 26, 28 (1992), allo. denied, 535 Pa. 668, 634 A.2d 1116 (1993); Luber v. Luber, 418 Pa.Super. 542, 546, 614 A.2d 771, 773 (1992), allo. denied, 535 Pa. 636, 631 A.2d 1008 (1993) ; McMahon v. McMahon, 417 Pa.Super. 592, 598, 612 A.2d 1360, 1363 (1992); Brower v. Brower, 413 Pa.Super. 48, 55, 604 A.2d 726, 730 (1992); Jackson v. Culp, 400 Pa.Super. 519, 522, 583 A.2d 1236, 1238 (1990), allo. denied, 529 Pa. 621, 600 A.2d 537 (1991); DeMatteis v. DeMatteis, 399 Pa.Super. 421, 430, 582 A.2d 666, 671 (1990); Bell v. Bell, 390 Pa.Super. 526, 529, 568 A.2d 1297, 1299 (1990); D’Huy v. D’Huy, 390 Pa.Super. 509, 514, 568 A.2d 1289, 1292 (1990), allo. denied, 525 Pa. 646, 581 A.2d 572 (1990); Caccavo v. Caccavo, 388 Pa.Super. 459, 464, 565 A.2d 1199, 1202 (1989); Bonder v. Sonder, 378 Pa.Super. 474, 491, 549 A.2d 155, 164 (1988); Wertz v. Anderson, 352 Pa.Super. 572, 577-80, 508 A.2d 1218, 1221-22 (1986), allo. denied, 514 Pa. 625, 522 A.2d 51 (1987). When analyzing contracts which involve clear and unambiguous terms, a court must look to the writing itself to give effect to the parties’ understanding. Creeks v. Creeks, 422 Pa.Super. 432, 434, 619 A.2d 754, 756 (1993); McMahon v. McMahon, supra, 417 Pa.Super. at 599, 612 A.2d at 1364. The court must construe the contract only as written and may not rewrite the contract or give it a construction that conflicts with the plain, ordinary and accepted meaning of the words used. Creeks v. Creeks, supra, 422 Pa.Super. at 434, 619 A.2d at 756; Lindstrom v. Pennswood Village, 417 Pa.Super. 495, 500, 612 A.2d 1048, 1051 (1992).

The petition for special relief filed by appellant requested the following relief:

[Appellant] respectfully requests that this Honorable Court grant the within Petition for Special Relief and [1] enjoin and restrain [appellee] from encumbering, dissipating, selling or otherwise alienating any and all material assets of the parties; [2] that a wage attached [sic] be entered against [appellee]; [3] that an accounting be ordered; and [4] such other relief as this Honorable Court deems necessary and appropriate.

The trial court dismissed the petition, finding that the enforcement provisions provided by the 1988 Amendments to the Pennsylvania Divorce Code and, in particular, wage attachment, were not available to appellant since the marriage settlement agreement at issue, which was executed in 1982, had been incorporated but not merged into the final decree of divorce.

Appellee argued and the trial court agreed that the following provisions of the marriage settlement agreement preclude enforcement of the agreement by any means other than those specifically set forth therein. The two provisions relied upon by appellee provide:

ONE: RELEASES

^ ^ Me Mi Mi
(b) ... It is specifically understood and agreed that the payments, transfers and other considerations herein recited comprehend and discharge any and all such claims by Eleanora against Salvatore and Salvatore against Eleanora and are, inter alia, in full settlement and satisfaction and in lieu of Salvatore’s and Eleanora’s past, present and future claims against each other on account of maintenance and support, alimony, and also alimony pendente lite, equitable distribution, counsel fees, costs or expenses whether arising as a result of the marital relationship or otherwise, including all economic rights and benefits under the Pennsylvania Divorce Code of 1980, its amendments and supplements, and any other charge of any nature whatsoever pertaining to any divorce proceedings which had been instituted by Eleanora in the Court of Common Pleas of Delaware County, Pennsylvania, or any other counsel fees, costs and expenses incurred or to be charged by any counsel or arising in any manner whatsoever, except, and only except, all rights, and agreements and obligations of whatsoever nature arising or which may arise under this Agreement, or for the breach of any provision thereof.
M* Mí Ms Mi . Mi Mi

ELEVEN: NO CHANGE IN CIRCUMSTANCES

Salvatore and Eleanora have been fully advised by their attorneys that they are entitled to certain property and other rights under the Pennsylvania Divorce Code, effective July 1, 1980, namely, the right to equitable distribution of all marital property, unless statutorily excluded, and the right to alimony after divorce. Nevertheless, Salvatore and Eleanora have decided that, pursuant to this Agreement, it is in each of their own best interest to waive his or her right to said marital rights and forever release the other spouse from any claims whatsoever for equitable distribution, alimony or any other property, or other rights they may have under the Pennsylvania Divorce Code, except as specifically set forth in this Agreement, which is accepted by Salvatore and Eleanora as a fair and equitable Agreement.... (emphasis supplied)

The trial court found that:

The positive statement of enforcement methods available under the agreement in conjunction with the express and repeated waiver of rights under the Divorce Code establishes a clear and unequivocal intention by the parties that the enforcement mechanisms provided by the 1980 Divorce Code and its amendments and supplements are not available to seek compliance of the various obligations contained therein. To ignore those terms of the agreement and now permit [appellant] recourse to the enforcement provisions established under the 1988 Amendments to the Divorce Code would have the effect of rewriting the agreement, which this Court cannot and refuses to do.

Appellee and appellant, in the stipulation of facts submitted to the trial court, agreed that the marriage settlement agreement provided the following remedies for enforcement of the provisions of the agreement:

a. Liquidated Damages (Paragraph 8(c))
b. Contempt Proceedings (Paragraph 8(d))
c. Acceleration of Payments (Paragraph 8(e))
d. Confession of Judgment (Paragraph 8(e))
e. Attorney Fees (Paragraph 8(e))
f. Signing of Judgment Notes (Paragraph 8(f))
g. Entry of Support Order (Paragraph 8(g))
h. Certain Rights in Respondent’s Business (Paragraph 8(h))
i. Payment of Interest (Paragraph 9(a))
j. Execution of Collateral Security (Paragraph 9(a))
k. Assignment of Interests (Paragraph 9(c))
l. Notice of Sale of Business (Paragraph 15)
m. Submission to Jurisdiction (Paragraph 22)
n. Confirmation and Waiver of Rights (Paragraph 1(b) and ID

The marriage settlement agreement, specifically, Paragraph 8(d) also provided:

In addition to all other remedies at law and equity, if Salvatore misses any alimony payments, as aforesaid, Eleanora shall have the right to institute the appropriate contempt proceedings before any appropriate court, (emphasis supplied)

Based upon our review of the entire agreement, we are unable to agree with the trial court that the marriage settlement agreement provided for enforcement only as expressly enumerated in the agreement.

Since we are unable to find an express rejection of all remedies other than those specifically enumerated in the marriage settlement agreement, we must proceed to a determination of the applicability of the 1988 amendments to the Divorce Code to this pre-amendment marriage settlement agreement.

Section 3105 was enacted as a codification of the existing Pennsylvania common law. McMahon v. McMahon, supra, 417 Pa.Super. at 601, 612 A.2d at 1365. Under both the statute and the common law, where the marriage settlement agreement specifically states that it is to be incorporated into, but.not merged with the divorce decree, as in the present case, then the court may not unilaterally modify the terms of the agreement. See: McMahon v. McMahon, supra, 417 Pa.Super. at 601, 612 A.2d at 1365; Brower v. Brower, supra, 413 Pa.Super. at 55, 604 A.2d at 730; Jackson v. Culp, supra, 400 Pa.Super. at 522, 583 A.2d at 1238; DeMatteis v. DeMatteis, supra, 399 Pa.Super. at 430, 582 A.2d at 671; Sonder v. Sonder, supra, 378 Pa.Super. at 493, 549 A.2d at 165; McGough v. McGough, 361 Pa.Super. 391, 392-95, 522 A.2d 638, 639-40, allo., denied, 515 Pa. 623, 531 A.2d 431 (1987). The rationale for this principle is the notion that, since the marriage settlement agreement is not merged with the divorce decree, it remains a contract, subject to the laws applicable to contracts. See: McMahon v. McMahon, supra, 417 Pa.Super. at 601, 612 A.2d at 1365; Brower v. Brower, supra, 413 Pa.Super. at 55-59, 604 A.2d at 730-31; Jackson v. Culp, supra, 400 Pa.Super. at 522, 583 A.2d at 1238; DeMatteis v. DeMatteis, supra, 399 Pa.Super. at 430, 582 A.2d at 671; Sonder v. Sonder, supra, 378 Pa.Super. at 491, 549 A.2d at 164.

Prior to the adoption of the 1988 amendments to the Divorce Code, a marriage settlement agreement which provided for incorporation but rejected merger was:

not enforceable under the Divorce Code. That is, the remedies of attachment of the person and wage attachment [were] not permissible when the agreement rejected] merger”. [Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155, (1988)]; Dechter v. Kaskey, 379 Pa.Super. 45, 48, 549 A.2d 588, 590 (1988). Such agreements, however, are governed by the law of contract, and are still enforceable in an action in assumpsit or in equity by specific performance although the remedies for enforcement of support orders are not available.

Andursky v. Andursky, supra, 382 Pa.Super. at 3, 554 A.2d at 573. This Court has repeatedly refused to allow the enforcement remedies of attachment of the person and wage attachment to be applied to a pre-1988 marriage settlement agreement while permitting the use of all enforcement procedures which do not “involve a change in obligations of the parties”, Jackson v. Culp, supra, 400 Pa.Super. at 522, 583 A.2d at 1238, to be applied to pre-1988 marriage settlement agreements. See: Brangs v. Brangs, 407 Pa.Super. 43, 50 n. 6, 595 A.2d 115, 119 n. 6 (1991); Andursky v. Andursky, supra; Dechter v. Kaskey, supra. The refusal of this Court to permit the use of wage attachment and contempt proceedings while permitting the use of other remedies provided by the amendments to the Divorce Code is based upon the well-settled presumption against the retroactive application of statutes affecting substantive rights.

The presumption against retroactive application of statutes and amendments thereto is particularly strong when application of the statute would interfere with existing contractual obligations. “Where the application of a statute would make a substantive change in the rights and obligations of the parties, it is presumed that the legislature intended its provisions to have no application to contracts existing prior to the effective date of the law.” Rudolph Rosa, Inc. v. Latrobe Brewing Co., 347 Pa.Super. [551] at 562, 500 A.2d [1194] at 1200 [ (1985) ]. See also Rupert v. Policemen’s R. & P. Fund, 387 Pa. 627, 632, 129 A.2d 487, 489 (1957); Krenzelak v. Krenzelak, 503 Pa. [373] at 379-380, 469 A.2d [987] at 990 [ (1983) ], citing Commonwealth v. Greenawalt, 347 Pa. 510, 512, 32 A.2d 757, 758 (1943).
In contrast to statutes which affect substantive rights, such as existing contractual obligations, statutes which aptly can be characterized as remedial, curative or affecting procedural matters may operate retroactively. Thus, it is a basic precept of statutory construction that laws which create remedies, affect procedural avenues, or clarify existing rights, all may escape the presumption against retrospective application of legislation. See, e.g., Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960).

Brangs v. Brangs, supra, 407 Pa.Super. at 48, 595 A.2d at 118.

Thus, the issue presented by this appeal, distilled to its essence, is whether permitting enforcement of the marriage settlement agreement, as requested in the petition of appellant, and including attachment of appellee’s wages as a remedy, affects a substantive, as opposed to a procedural right. We conclude that although wage attachment would be a method of enforcement, that is to say a procedural remedy, the attachment of a person’s wages involves certain substantive rights which preclude retroactive application. Our conclusion is supported by the fact that, in Pennsylvania, the attachment of an obligor’s wages is a remedy which is extremely circumscribed. Our Judicial Code provides as follows:

§ 8127. Personal earnings exempt from process
The wages, salaries and commissions of individuals shall while in the hands of the employer be exempt from any attachment, execution or other process except upon an action or proceeding:
(1) Under 23 Pa.C.S. Pt. IV (relating to divorce).
(2) For support.
(3) For board for four weeks or less.
(4) Under the act of August 7, 1963 (P.L. 549, No. 290), referred to as the Pennsylvania Higher Education Assistance Agency Act.

42 Pa.C.S. § 8127 (footnote omitted) (emphasis supplied).

We find further support for our conclusion in those cases which hold that the attachment of a party’s wages may not be used to enforce a marriage settlement agreement which specifically rejects merger with the divorce decree. See: Andursky v. Andursky, 382 Pa.Super. 1, 3, 554 A.2d 571, 573 (1989); Dechter v. Kaskey, 379 Pa.Super. 45, 48, 549 A.2d 588, 590 (1986).

While it may appear inconsistent to suggest that the retroactive application of the Divorce Code amendments is permissible regarding methods of enforcement other than contempt and wage attachment, we would simply reiterate the position previously stated by this Court in Jackson v. Culp, supra:

We find no anomaly in applying the enforcement procedures provided by the 1988 Amendment to a pre-1988 MSA while refusing to apply other provisions of the Amendment which would involve a change in obligations of the parties.

Jackson v. Culp, supra, 400 Pa.Super. at 522, 583 A.2d at 1238..

Thus, we conclude that the esteemed Judge Joseph T. Labrum, Jr., properly found that the attachment of appellee’s wages is a remedy which is not available in the present case. However, since other enforcement remedies are available to appellant, including contempt proceedings, we remand this case so that the trial court may take whatever action it deems appropriate, absent wage attachment, to enforce appellee’s compliance with the agreement.

Order vacated in part. Case remanded. Jurisdiction relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge, dissenting.

I respectfully dissent to amendment of the Order entered by the Honorable Joseph Labrum in this case. My review of the caselaw and statutes, including the 1988 amendments to the Divorce Code of 1980, leads me to conclude that this exceptionally well drawn agreement is both unambiguous and precise to limiting enforcement of the agreement to the terms therein.

Judge Labrum’s Opinion clearly and succinctly states the law which governs agreements such as these and his findings should not be disturbed. With good reason the law, both statutory and caselaw, has come to favor such agreements and to honor these provisions. The amendments to the Divorce Code in 1988 contained in 23 Pa.C.S. § 3105, corrected and solidified the law as reinterpreted and modified by the legislature as a result of developments that occurred in cases decided since 1980. It was clear that the legislature intended a different approach as to the court’s resolution of agreements entered into between 1980 and 1988. Nothing in the amendments of 1988 permits retroactive application.

In addition, the provision on enforcement, section 3105(a), concludes: ... [the court] may utilize a remedy ... to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement. 23 Pa.C.S. § 3105(a) (emphasis added). Even if this agreement had been entered subsequent to 1988, the provision of the agreement denying enforcement through the court by means of the provisions available in the Divorce Code would be binding and prevent such enforcement. Because the amendment to the Divorce Code in the enforcement provision may not be given retroactive effect, the application for relief suggested by appellant is unavailable in all respects.

The terms of the agreement are specific as to how the agreement may be enforced in the event of default, and the absence of other possible remedies may not be used to extend court jurisdiction for enforcement beyond those contained in the agreement. It is beyond doubt or question that the agreement established exclusive remedies to cure default which are binding on the parties, and this Court may not modify the agreement to give a greater benefit to one of the parties.

I would affirm on the basis of the trial court’s Opinion.

      . Section 3105(a) of the Divorce Code provides:

        A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

      23 Pa.C.S. § 3105(a) (emphasis supplied).

      . 42 Pa.C.S. §§ 101 et seq.

      . We have not included contempt proceedings in our analysis since the agreement at issue specifically provided for the use of contempt proceedings to enforce the agreement.


author: POPOVICH, Judge.

text:
    655 A.2d 132
    Thomas H. NIMICK, Jr., Appellee, v. Robert P. SHUTY, Appellant. (Two Cases) Thomas H. NIMICK, Jr. Appellee, v. Robert P. SHUTY and Barbara J. Shuty, Husband and Wife, Appellants. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted Oct. 4, 1994.
    Filed Feb. 15, 1995.

      Thomas E. Reilly, Pittsburgh, for appellants.
    Anthony J. Guida, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the orders dated December 21, 1993, entered in the Court of Common Pleás of Allegheny County. Herein, we are presented with questions of whether appellee has a viable cause of action against appellant, Robert P. Shuty, under the terms of a promissory note entered into between the parties. Further, we are asked to determine whether the lower court erred in awarding a money judgment to appellee for appellants’ fraudulent conveyance of property.

The record reveals that in December of 1982, Mr. Shuty approached appellee, Thomas H. Nimick, Jr., to solicit his investment in a business entity which Mr. Shuty intended to form that would market and distribute microprocessing controllers. RR. 86-87. Mr. Shuty informed Mr. Nimick that he needed $30,000.00 to start that project. RR. 87. Mr. Shuty received the sum of $30,000.00 from Mr. Nimick pursuant to a Promissory Note and Agreement dated December 29, 1982 (the “Note”). RR. 87. The Note provided the following language:

For value, Robert P. Shuty promises to pay to the order of Thomas H. Nimick, Jr., of Ligonier Township, Pennsylvania, the sum of Thirty Thousand ($30,000.00) Dollars, ON DEMAND, after the date hereof, with interest on the unpaid principal balance from the date hereof, until payment in full at a rate at all times two percent (2%) per annum more than the rate from time to time in effect at the principal office of Pittsburgh National Bank for 90-day loans to prime commercial borrowers. Any change in such prime rate shall be effective with respect hereto on the day following such change. Interest payments shall be made quarterly on March 31, June 30, September 30, and December 31 of each year commencing March 31, 1983. Robert P. Shuty shall have the right to prepay the principal in whole or in part from time to time without premium or penalty; provided, however, that payment of this Promissory Note will not eliminate or otherwise affect Thomas H. Nimick, Jr.’s right to take an equity or partnership position in an equity to be jointly established by Robert P. Shuty and Thomas H. Nimick, Jr. pursuant to the following paragraph hereof.
As part of the consideration to Thomas H. Nimick, Jr. for making the loan represented by this Promissory Note, the said Thomas H. Nimick, Jr. shall have the right, at his sole option, to take an equity or partnership position up to forty percent (40%) in an entity to be jointly established by Robert P. Shuty and Thomas H. Nimick, Jr. This entity pertains solely to the exclusive rights to market and distribute E-CON SYSTEMS currently manufactured by ACCUCIRCUIT AND ELECTRONIC MFG. CO. of 1106 Reeds-dale Street, Pittsburgh, Pennsylvania. Once Thomas H. Nimick, Jr. has determined the precise percentage of equity or partnership interest to be taken by him, he shall pay for such interest, by conversion of all or a portion of this Promissory Note or otherwise, by investing in such entity an amount proportionate (taking into account the percentage interest thus determined) to the investment of Robert P. Shuty. For this purpose, the value of the investment of Robert P. Shuty shall be determined by mutual agreement of Robert P. Shuty and Thomas H. Nimick, Jr.
Robert P. Shuty shall take no actions related to the aforesaid business or entity (including without limitation the signing of any contract) without the prior written consent of Thomas H. Nimick, Jr.....

RR. 278-279. From March of 1983 through January 10, 1986, Mr. Shuty made quarterly interest payments to Mr. Nimick on the Note. After that period, however, Mr. Shuty failed to make any payments on the Note. RR. 89. The Note was amended by a letter dated April 17, 1986, sent from Mr. Nimick to Mr. Shuty. The letter provided that any unpaid interest would be added to the principal amount, “and so on, until the accumulated Demand Note is satisfied.” RR. 294'. Moreover, the letter expressly stated that Mr. Nimick was not demanding payment of either interest or principal. RR. 295. Mr. Shuty consented in writing to the amendment of the Note. RR. 295.

From July of 1986 to April of 1992, Mr. Nimick sent Mr. Shuty quarterly statements which added the unpaid interest to the principal. Each statement also provided for compounded interest that was due. RR. 296, 299-302, 306-321. By letter dated February 19, 1992, Mr. Nimick demanded payment of the principal, together with accrued interest, in the amount of $72,583.06, plus per diem interest. RR. 322. On March 9, 1992, Mr. Nimick brought suit against Mr. Shuty to enforce the Note. On April 30, 1992, Mr. Shuty served his answer and new matter to Mr. Nimick’s action on the Note.

On May 6, 1992, Mr. Shuty conveyed his interests in two parcels of real property from himself to his wife and himself, as tenants by the entireties, for a consideration of $1.00 each. RR. 92-93; 338-345. The two parcels of real property included a 64-acre parcel and a 15-acre parcel both located in Coraopolis, Pennsylvania. By deed dated June 4, 1969, Mr. Shuty had become sole owner of the 64-acre parcel, and, on October 3, 1977, Mr. Shuty acquired an undivided % interest in the 15-acre parcel. RR. 92-93. On August 7, 1992, the 15-acre parcel was sold to Stanford Court Associates for $320,-000.00. At the time of the sale, Mr. Shuty had a limited partnership interest in Stanford Court Associates. Further, Mr. and Mrs. Shuty received approximately $43,000.00 from the sale of their interest in the 15-acre parcel. RR. 96.

Also, on August 7, 1992, Mr. Nimick filed a complaint in equity alleging the conveyances by the Shutys were made fraudulently. Mr. Nimick sought to enjoin the Shutys from transferring the properties and requested that he be permitted to levy and execute upon the properties. RR. 41-43. On October 1, 1992, the Shutys filed their answer to Mr. Nimick’s complaint in equity.

Thereafter, the lower court entered an order dated August 3, 1993, that consolidated the two suits for trial. RR. 73. On October 21, 1993, the lower court held a bench trial. On December 21, 1993, the court below rendered a verdict in favor of Mr. Nimick and against Mr. Shuty in the Note action for the amount of $93,600.38, together with interest at the per diem rate of $29.83 from October 21, 1993, and costs. Further, the lower court entered a decree that set aside the conveyance of the 64-acre parcel as fraudulent and awarded $43,000.00 to Mr. Nimick for the proceeds received by the Shutys from their sale of the 15-acre parcel to a third party. RR. 365-367.

On January 3, 1994, the Shutys filed post-verdict motions requesting that the lower court reconsider its verdict and decree. The lower court entered an order and opinion dated March 11, 1994, that denied those motions. This appeal followed.

“When reviewing the decision of a bench trial, this court is limited to determining whether the findings of the trial court are supported by competent evidence or whether the trial court committed error in any application of the law.” Coscia v. Hendrie, 427 Pa.Super. 585, 589, 629 A.2d 1024, 1026 (1993), citing, Spang & Co. v. USX Corp., 410 Pa.Super. 254, 599 A.2d 978 (1991).

Herein, Mr. Shuty initially contends that the lower court erred in holding that the Note action was not barred by the. statute of limitations provided under 42 Pa.C.S.A. § 5525(7). That section reads in pertinent part as follows:

The following actions and proceedings must be commenced within four years:
* # * * iji *
(7) An action upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.

42 Pa.C.S.A. § 5525(7) (emphasis added).

Mr. Nimiek filed his complaint in the Note action on March 9,1992. Mr. Shuty argues that Mr. Nimick’s claim accrued on or about January 10, 1986, the date of Mr. Shuty’s last payment under the Note. Mr. Shuty, thus, maintains that the Note action was time-barred on January 11, 1990.

We reject Mr. Shuty’s assertion that the statute of limitations began to run on or about January 10, 1986. Section 5525(7) clearly states that the four-year statute of limitations is calculated from the later of either (1) demand or (2) payment df principal of or interest on the instrument. In the case at bar, the demand occurred later than the payment. Upon examination of the record, we find that Mr. Nimick made his first demand upon the Note on February 19, 1992. We conclude that Mr. Nimick’s claim accrued on that date.

Mr. Shuty also argues that the demand was not made within a reasonable time in view of the fact that that the note was executed in 1982 and the last payment was made in 1986. He suggests that Mr. Nimick arrested the running of the statute of limitations for his own convenience. Mr. Shuty directs our Court’s attention to the following decision to buttress his contention: Gurenlian v. Gurenlian, 407 Pa.Super. 102, 595 A.2d 145 (1991). We do not find our decision in Gurenlian, supra, is dispositive of the instant facts. In that case, our Court concluded that the plaintiffs cause of action on an oral loan that did not condition repayment on the making of a demand was barred by a four-year statute of limitations pursuant to 42 Pa.C.S.A. § 5525(3). Id. at 112-113, 595 A.2d at 149-150. There, we found that the plaintiffs claim had accrued at the time he lent money to the defendant and that six years had elapsed when the plaintiff instituted, action for repayment. Id. at 112-113, 595 A.2d at 150. In Gurenlian, our Court cited Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983), in recognition that the statute of limitations applied differently to cases involving written notes which conditioned repayment on the making of a demand. Id. at 113 n. 3, 595 A.2d at 150, n. 3.

In Lazzarotti v. Juliano, supra, our Court rejected the defendant’s argument that the plaintiffs suit on a note payable upon demand was time-barred solely because the note was executed seven years before the action commenced. See Gordon v. Sanatoga Inn, Inc., 429 Pa.Super. 537, 632 A.2d 1352 (1993) (action on note payable upon demand was not barred by four-year statute of limitations where demand was made eleven years after execution of note). Here, Mr. Nimick’s demand of payment was made nine years after the execution of the Note. In light of the aforementioned decisions, we do not find merit to Mr. Shuty’s claim that the demand was not made within a reasonable time.

Further, we note that § 5525(7) is completely devoid of language requiring a time limit within which a demand must be made. Compare 13 Pa.C.S.A. § 3118(b) (Uniform Commercial Code, Article 3, effective July 9, 1993) (“If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years.”). “[T]his Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it.” Key Sav. and Loan Ass’n v. Louis John, Inc., 379 Pa.Super. 226, 232, 549 A.2d 988, 991 (1988), appeal denied, 523 Pa. 632, 564 A.2d 1260 (1989), citing, Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983). “[W]hen the letter of a statute is clear and unambiguous, this Court is not free to engraft additional verbiage upon it in a supposed effort to pursue its spirit.” Black v. Billy Penn Corporation, 72 Pa.Commw. 628, 632, 457 A.2d 192, 193 (1983), citing, 1 Pa.C.S.A. § 1921(b). See Amendola v. Civil Service Commission of Crafton Borough, 139 Pa.Commw. 76, 589 A.2d 775, 777 (1991) (a court lacks power to insert words into statutory provisions where the legislature has failed to supply them). “We are to presume the legislature did not intend a result that is absurd or unreasonable.” Commonwealth v. Runion, 427 Pa.Super. 217, 220, 628 A.2d 904, 906 (1993), citing, Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

Having determined that Mr. Nimick’s cause of action on the Note accrued on February 19, 1992, we conclude that his suit tiled on March 9, 1992, was not time-barred under 42 Pa. C.S.A. § 5525(7).

Mr. Shuty next challenges the lower court’s determination that the terms of the Note were unambiguous and its application of the parol evidence rule. Under Pennsylvania law, “parties have the right to make their own contract, and it is not the function of a court to rewrite it or to give it a construction in conflict with the accepted and plain meaning of the language used.” Meeting House Lane, Ltd. v. Melso, 427 Pa.Super. 118, 126, 628 A.2d 854 (1993), citing, Amoco Oil Co. v. Snyder, 505 Pa. 214, 221, 478 A.2d 795, 798 (1984).

Mr. Shuty contends that the Note was not a personal loan to him by Mr. Nimick. Instead, Mr. Shuty maintains that the Note was “an agreement to fund an unspecified equity interest in an entity that was to be established shortly after the execution of the agreement.” RR. 23-24. We find that the instrument afforded Mr. Nimick the “right, at his sole option,” to convert the Note into an equity position. RR. 279. However, in this case, Mr. Nimick was precluded from exercising his “option” because the entity contemplated by the Note was never formed by Mr. Shuty. RR. 361. Upon evaluating the language of the Note in its totality, see Melso, 427 Pa.Super. at 126, 628 A.2d at 857 (contract must be construed as a whole), we conclude that the parties clearly and unambiguously intended the instrument to be an unconditional promise of repayment. Moreover, we note that Mr. Shuty does not allege that the instrument was tainted by fraud or mistake. Consequently, we hold that the lower court did not commit an error of law in denying Mr. Shuty’s request to introduce parol evidence to vary or alter the terms of the Note. See Iron Worker’s S & L v. IWS, Inc., 424 Pa.Super. 255, 264-265, 622 A.2d 367, 372 (1993) (in absence of fraud, mistake or accident, parol evidence is inadmissible to vary terms of written contract where contract is found to be unambiguous); Beckman v. Vassall-Dillworth Lincoln-Mercury, Inc., 321 Pa.Super. 428, 438-39, 468 A.2d 784, 789 (1983) (same).

Mr. Shuty also asserts that the lower court misconstrued the amendment to the Note in regard to the compounding of interest as set forth in Mr. Nimick’s letter dated April 17, 1986. The lower court determined that the amendment to the Note allowed for the compounding of interest on the payment of April 10, 1986, and all subsequent payments. Mr. Shuty, however, takes the position that the lower court erred in its interpretation because the amendment to the Note allowed for the compounding of interest only on the particular payment of April 10, 1986. The letter dated April 17, 1986, provided the following germane paragraphs:

As we discussed previously on the telephone, you would probably miss your April 10th interest payment to me and that this amount in turn would be added to the principal amount. Accordingly, this new amount of principal would also be accumulating interest at fifteen percent (15%) per annum.
Pro Forma, beginning April 10th, the new principal amount will be $31,125.00 at 15% per annum and the interest due on July 10th, is calculated to be $1,167.19; and so on, until the accumulated Demand Note is satisfied.

RR. 294 (emphasis added). Mr. Shuty consented in writing to the amendment to the Note. RR. 295. From our careful evaluation of the letter dated April 17, 1986, we find that the lower court properly determined that the parties intended to have the interest compounded on all payments. Also, we note importantly that Mr. Shuty was completely aware that interest was compounded on all payments since the quarterly statements sent to him by Mr. Nimick from July, 1986 to April, 1992, expressly provided as such. RR. 296, 299-302, 306-321. Yet, he voiced no objection to the compounding of interest on the payments until the suit was brought. We decline to avail Mr, Shuty of relief suddenly when, for nearly six years, he was clearly cognizant of the fact that interest was compounded on the payments.

Our final inquiry herein focuses upon the question of whether the lower court erred in awarding a money judgment to Mr. Nimick for the Shutys’ fraudulent conveyance of property. The court below set aside the conveyance of the 64-acre property and entered judgment for $43,000.00 on the conveyance of the 15-acre property made to a third party.

On May 6,1992, two months after Mr. Nimick filed his Note action, Mr. Shuty conveyed his interests in the 64-acre and 15-acre properties from himself to his wife and himself, as tenants by the entireties, for a consideration of $1.00 each. We initially find that the conveyance of those properties on May 6, 1992, was made fraudulently.

Under the Uniform Fraudulent Conveyances Act, 39 P.S. §§ 351-363 (repealed December 3, 1993, effective in 60 days), “[ejvery conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.” 39 P.S. § 354 (emphasis added). “A person is insolvent when the present, fair, salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.” 39 P.S. § 352(1) (emphasis added).

“When a creditor establishes that a grantor was in debt at the time of conveyance, the burden shifts to the grantees to establish by clear and convincing evidence, either that the grantor was then solvent and not rendered insolvent by the conveyance, or that he received fair consideration for the conveyance.” Coscia v. Hendrie, 427 Pa.Super. 585, 629 A.2d 1024,1026 (1993) (citations omitted). Here, Mr. Nimick established that Mr. Shuty was in debt at the time of the conveyance on May 6, 1992. RR. 94. Thus, the burden of proof shifted to Mrs. Shuty to establish by clear and convincing evidence that Mr. Shuty was solvent on the date of the conveyance or that she paid fair consideration. Upon review of the record, we conclude that the lower court properly ruled that Mrs. Shuty failed to meet such burden.

We find no merit to the Shutys’ assertion that their subsequent conveyance of the 15-acre property to a third party was not fraudulent by virtue of the trial court’s setting aside of the 64-acre conveyance. The Shutys maintain that the 64-acre property had an appraisal value of at least $272,-000.00, and that when the conveyance of this property was set aside, the lower court, in effect, made the Shutys solvent. The Shutys, thus, argue that the lower court erred in awarding a money judgment to Mr. Nimick for $43,000.00 from their sale of the 15-acre property to a third party. The Shutys have failed to cite any authority in support of that contention. “The argument shall be ... followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Compare Commonwealth v. Rodgers, 413 Pa.Super. 498, 519-520, 605 A.2d 1228, 1239 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (appellate brief must include pertinent discussion along with citation to pertinent authorities). Arguments that are not appropriately developed are waived. Id., citing, Commonwealth v. Nelson, 389 Pa.Super. 417, 422-23, 567 A.2d 673, 676 (1989), alloc. denied, 527 Pa. 623, 592 A.2d 44 (1990). Because .the Shutys have not cited any pertinent authority to buttress their contention that the lower court erred in awarding a money judgment against them for their conveyance of property to a third party, we deem this claim waived. Even if we were to determine that the Shutys’ assertion was not waived, we would find it meritless. Guided by the language of the Uniform Fraudulent Conveyances Act, our scrutiny of “insolvency” attaches at or near the time of the conveyance, and not at the time of the lower court’s ruling. See First Nat. Bank of Marietta v. Hojfines, 429 Pa. 109, 239 A.2d 458 (1968); Angier et al. v. Worrell, 346 Pa. 450, 31 A.2d 87 (1943).

Having closely evaluated appellants’ points of error and finding that they do not avail relief to appellants, we, accordingly, affirm the orders entered by the lower court.

Orders affirmed.

      . Our review of the record reveals that on April 21, 1994, the orders in question were reduced to judgment in favor of appellee.

      . Mr. Shuty asserts that Mr. Nimick made repeated demands upon the Note in his quarterly statements sent to Mr. Shuty between January, 1986, and February, 1992. We do not discern of any evidence that Mr. Nimick demanded payment until February, 1992. From our view of the quarterly statements prior to February, 1992, we find that Mr. Nimick expressly informed Mr. Shuty of the amounts due under the Note and patiently availed him of the opportunity to make his payments.

      . Section 5525(3) reads as follows:
      The following actions and proceedings must be commenced within four years:
      * * * !¡S t'

      (3) An action upon an express contract not founded upon an instrument in writing.
      42 Pa.C.S.A. § 5525(3).

      . In Lazzarotti v. Juliano, supra, 42 Pa.C.S.A. § 5527 was in effect at the time of the filing of the .complaint. Section 5527 allowed for a six-year statute of limitation. That section was repealed and replaced by 42 Pa.C.S.A. § 5525 which provides for a four-year statute of limitations.

      . We reject Mr. Shuty's claim that the statute of limitations began to run in January, 1986. Hence, we need not address Mr. Shuty's contentions that the lower court erred in ruling that his acknowledgements of debt between 1986 and 1990, tolled the statute of limitations.

      . The Shutys cite Simon v. Sorrentino, 145 Pa.Super. 364, 20 A.2d 805 (1941). In that case, however, the Court was not presented with the issue of whether a trial court’s setting aside of a conveyance has the effect of making a party solvent.