author: WICKERSHAM, Judge:

text:
    487 A.2d 413
    James E. GERBER, Appellant, v. Marie P. GERBER.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Jan. 18, 1985.

      Daryl J. Gerber, Palmyra, for appellant.
    Philip H. Feather, Annville, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WICKERSHAM, Judge:

James E. Gerber appeals from the order of the Court of Common Pleas of Lebanon County granting primary custody of his son, James E. Gerber, Jr., to his wife, Marie P. Gerber.

James and Marie Gerber were married on May 20, 1978. It was Marie’s second marriage and James’ first. Their child, James, Jr., the subject of this custody dispute, was born on August 1, 1979. In November of 1982, Marie left the marital home, taking young James [hereinafter “Jimmy”] with her.

James filed a divorce complaint on January 7, 1983, seeking custody of the couple’s son in count III thereof. Following a custody hearing in the lower court on November 22, 1983, the Honorable G. Thomas Gates issued an order granting custody of the child to Marie, appellee herein. This timely appeal followed.

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ...[.] Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ...
(W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge. (Citation omitted; emphasis added.).
[Commonwealth ex rel. Spriggs v. Carson] 470 Pa. [290] at 296, 368 A.2d [635] at 637 [1977].
Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings. Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); and, thus, represent a gross abuse of discretion, Carson.

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (emphasis in original).

With this standard in mind, we must thoroughly review the record to determine whether the lower court abused its discretion in granting custody of Jimmy to appellee.

In cases involving custody of a minor child, the controlling question and paramount concern of the court is the best interests of the child; all other considerations are deemed subordinate to the child’s physical, intellectual, moral, and spiritual well-being. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983). Instantly, the lower court found that Jimmy’s best interests would best be served by allowing him to remain with his mother. Appellant avers that this decision was against the weight of the testimony. We disagree.

The lower court considered a number of factors and compared and contrasted the relative merits of each parent. The lower court found that both James and Marie are “loving and capable parents.” Lower ct. op. at 3. This is thoroughly supported by the record.

Further, it is clear that both parties are in relatively the same financial condition and are both able to adequately provide for the child. Lower ct. op. at 4. Appellant argues, however, that he is better able to manage his resources, as indicated by the fact that he has paid all of the couple’s joint obligations as well as child support, whereas appellee has failed to pay a number of her own bills. Brief for Appellant at 12-13. While there is some evidence to this effect in the record, we do not believe that this establishes that appellant’s financial condition is obviously superior to appellee’s. Furthermore, appellant does not argue, nor is there any evidence in the record, that appellee’s financial condition has had, or will have in the future, an adverse effect on Jimmy. Thus we find that both parties are financially able to provide for the child and any differences in their respective financial conditions are irrelevant to the instant custody determination. See Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979) (Unless the income of one party is so inadequate as to preclude raising the child in a decent manner, the matter of relative incomes is irrelevant).

Marie Gerber resides with her son in a second floor apartment in Lebanon. It consists of a living room, kitchen, bedroom, and bathroom. The home study report indicates that the apartment is spacious and comfortably furnished. The lower court found these living facilities to be adequate. Lower ct. op. at 4. At the time of the hearing, appellant was living in his parent’s home, which the court found to be adequate. Appellant expresses concern with the court’s reference to the temporariness of this arrangement. That is, the court noted that appellant testified that his living arrangements would change when he married his girlfriend, Donna. The court stated that “we have no idea of what living arrangements will be available for the child when Mr. Gerber is financially stable and married to his present girlfriend.” Lower ct. op. at 4-5. We do not believe, however, that the court found this uncertainty to be important. Rather, it is clear that the court decided that both present living arrangements were adequate. Thus, we feel that this factor was not determinative of the outcome of this dispute.

The main points of contention between the parties seem to be which parent has been more involved in the child’s upbringing and which of them will be more available to him on a day-to-day basis. In this regard, appellant avers that he did most of the meal preparation and housework during the couple’s marriage. He also alleges that he toilet-trained Jimmy, takes him on outings, includes him in his athletic activities, and teaches him a variety of things. Appellant testified that appellee cooked very few meals for Jimmy throughout their marriage and that she participated in very few social, athletic, educational, or other activities with the child. While the transcript does reflect such testimony, the record also contains contradictory evidence. Marie testified that it was she, along with Jimmy’s babysitter, who was responsible for Jimmy’s toilet training. This was verified by the babysitter. Furthermore, appellee testified that she makes breakfast for Jimmy every morning before taking him to the babysitter, and on days when she does not have to be at work until 1:00 p.m., she also makes him lunch. Marie also testified that she has taken Jimmy to the playground or to the park to play ball on a number of occasions. The home study report indicates that appellee has worked with Jimmy on his ABC’s, reads to him, and participates in a number of activities with him. Thus, there is competent evidence in the record that contradicts appellant’s allegations that he shows more concern for Jimmy’s well-being than appellee. See In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983) (hearing judge as factfinder is in best position to evaluate the sincerity and credibility of the witnesses; his findings must be supported by competent evidence).

Appellant also avers that Marie’s work schedule greatly restricts the amount of time she can spend with Jimmy and results in Jimmy being cared for by a babysitter for much of the day. Marie is employed by Radio Shack. She works either from 10:00 a.m. to 6:00 p.m. or from 1:00 p.m. to 9:00 p.m. Appellee employs a full-time babysitter to look after Jimmy when she is at work. Appellant points out that he works from 6:00 a.m. to 2:30 p.m. and therefore has more time available to be with Jimmy. As the lower court notes, however, appellant participates in many athletic and other activities which demand his absence from home several nights a week. On these evenings, Jimmy would be cared for by a babysitter. Thus, it seems that both parents are sometimes unavailable to care for the child. Therefore, we believe that appellant over-emphasizes appellee’s reliance on babysitters and understates his own rather full schedule. Furthermore, a parent’s work schedule may not deprive that parent of custody if suitable arrangements are made for the child’s care in his or her absence. K.L.H. v. G.D.H., supra, 318 Pa.Super. at 339, 464 A.2d at 1374. Also see, In re Custody of Temos, 304 Pa.Super. 82, 110-11, 450 A.2d 111, 125 (1982). In this case, it is clear that Jimmy is properly cared for while his mother is at work.

The lower court seemed to place the most emphasis on the fact that Marie has had continuous custody of Jimmy since birth and since separation. Lower ct. op. at 5. It appears that both James and Marie are loving parents and are both capable of caring for Jimmy. Nevertheless, Jimmy has lived with his mother since birth and Marie has had custody of Jimmy during the two years following the couple’s separation. A court must consider the importance of continuity in a child’s life and the desireability of the development of a stable relationship with an established parental figure and a known physical environment. See In re Custody of Temos, supra. Instantly, the lower court found, and we agree, that appellee has established a successful custodial relationship and that this stability should not be disturbed. See Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984); In re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978).

The lower court did not abuse its discretion in maintaining the status quo by awarding custody of Jimmy to appellee.

Order affirmed.

      . With regard to appellee’s lack of concern for Jimmy, appellant points to Marie’s relationship with her other son. Marie was married previous to her marriage to appellant. That marriage produced one son, Michael. When Marie and her first husband separated, she voluntarily gave custody of Michael to her husband. Appellant testified that appellee never visits Michael, even though he lives only a short distance away. Appellant argues that it is contradictory for Marie to declare that she will be a good mother to Jimmy when she has ignored her parental duties to her first child.
      Appellee explained that at the time of her separation and divorce from her first husband, she felt she was both financially and emotionally unable to take care of Michael. We do not agree with appellant that appellee’s decision to give her first husband custody of Michael indicates her lack of concern or inability to care for Jimmy. In fact, the record reflects that Marie is a fit parent who has provided appropriate care for Jimmy. Appellee’s past conduct with regard to Michael is not relevant to this custody dispute. See Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983) (a parent’s ability to care for a child must be determined as of the time of the custody hearing, not as of an earlier time).

      . In his second issue, appellant avers that the lower court opinion did not give a complete explanation of the reasons for the award of custody to appellee. We disagree. The court adequately discussed the facts and the testimony presented by the parties. The court addressed the living arrangements, work schedules, financial condition, and attitudes of each parent. The court was impressed with the mother’s candor and credibility. Furthermore, the court also considered the importance of maintaining stability in the child’s life in its decision to maintain the status quo. We find that the lower court opinion was adequate. See Commonwealth ex rel. Debeary v. Debeary, 310 Pa.Super. 137, 456 A.2d 221 (1983).


source: Caselaw Access Project

license: Public Domain

text:
    487 A.2d 417
    Connie R. DELBAUGH v. David L. DELBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Jan. 18, 1985.

      Maxine K. Lewis, Harrisburg, for appellant.
    Wayne A. Bromfield, Lewisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WICKERSHAM, Judge:

David L. Delbaugh appeals from the order of the Court of Common Pleas of Snyder County awarding joint custody of his son, Matthew, to him and his wife, Connie.

David and Connie Delbaugh were married on August 22, 1964. Their only child, Matthew, the subject of this dispute, was born on April 9,1980. Connie filed a divorce complaint on June 23, 1983, requesting custody of Matthew in Count V thereof. She also filed a petition to confirm custody on June 30, 1983. A custody hearing was held on November 16, 1983. Because all of the witnesses did not have an opportunity to testify, the hearing was continued and an interim order dated November 16, 1983 was entered, awarding joint custody to the parties with provisions concerning the child’s nursery school, holidays, and extra periods of visitation for the noncustodial parent. Because the presiding judge was not retained in the election held a week or two prior to the custody hearing, counsel stipulated to the completion of the record by deposition. A final order was entered on December 29, 1983. This order was substantially a rewording of the order of November 16, 1983. No opinion was written by the presiding judge.

Appellant presents two issues for our consideration:

I. Is it appropriate that this honorable court review the custody order of December 29, 1983 despite the absence of an opinion?
II. Is it in the best interest of the child that the father be awarded sole custody of the child?
(A) Has the father been the primary caretaker?
(B) Is the father better able to provide continuity and stability?

Brief for Appellant at 5. We find that because of the unique circumstances of this case, most important of which is the absence of an opinion by the hearing judge, we cannot address the merits of this appeal. Accordingly, we will not discuss appellant’s second issue.

Preliminarily, we note that appellate review in child custody cases is of the broadest type. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

However, we have also taken great care to stress: “... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge...”
******
“... (W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge ...” (Citation omitted; emphasis added.).

Id., 505 Pa. at 236-237, 478 A.2d at 806.

To facilitate our review of custody cases, we require the hearing judge to file “in every such case a comprehensive opinion reflecting a thorough analysis of the record as a whole and specifying the reasons for its ultimate decision.” Commonwealth ex rel. Crowther v. Waida, 272 Pa.Super. 73, 74, 414 A.2d 675, 676 (1979) (citations and quotations omitted; emphasis in original). Instantly, we have before us no findings of fact, no conclusions, no analysis of the record, and no statement of reasons for the custody award. When the opinion of the lower court is inadequate, the standard procedure is to remand the case to the lower court for the filing of a comprehensive opinion discussing fully the merits of the case. See V.B. v. M.L.T.B., 321 Pa.Super. 36, 467 A.2d 880 (1983); Common wealth ex rel. Crowther v. Waida, supra; Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974).

We recognize, however, that in some cases where the lower court has failed to file an adequate opinion in support of its custody decision, we have not remanded the case, but have decided the question of custody based upon our own examination of the record. See Parks v. Parks, 284 Pa.Super. 400, 426 A.2d 108 (1981); Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979); Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977). In Parks, supra, the judge who had conducted the hearings resigned from the bench. The appellate court, faced with a deficient opinion, decided not to remand, but rather, engaged in a comprehensive review of the complete record. Similarly, in Husack (where the hearing judge was elevated to the appellate court) and in Tomlinson (where the hearing judge retired), the appellate court decided that despite inadequate opinions, the records were sufficiently complete to enable the court to judge where the merits of the appeals lay. Instantly, appellant argues that the record is complete, and since the hearing judge is no longer on the bench, we should not remand this case to the lower court. We disagree.

First, we note that in all of the cases in which this court has decided not to remand despite an inadequate opinion, there existed some form of opinion discussing various aspects of the case. Instantly, we have absolutely no indication of the reasons for the award, no findings of fact, and no evaluation of the credibility of the witnesses. We, as an appellate court, are not in a position to make findings of fact or determine the credibility of the witnesses’ testimony. Without some indication of the reasons for the award or the weight given the various pieces of evidence, we cannot determine whether the court committed an abuse of discretion.

Second, it seems that both parties are dissatisfied with at least a portion of the custody award. Counsel indicated that in some respects the joint custody situation is not operating smoothly. Further, Dr. Stanley Schneider testified on the record that there are situations in which joint custody awards will not work. Again, because of the absence of an opinion, we cannot determine what facts prompted the hearing judge’s decision to make an award of joint custody rather than give sole custody to one of the parties.

We recognize that to remand now means not merely a remand for a fuller opinion, but rather to start the proceedings all over again. This is necessitated by the fact that the presiding judge is no longer on the bench. We find it extremely unfortunate that the proceedings must be renewed in the lower court, but we see no acceptable alternative. We cannot review the record of this case without some findings of fact and a determination of witness credibility.

The difficulty with this case is that the lower court has not discussed the basis of the decision nor the evidence. In these circumstances we find ourselves unable to discharge our responsibility in good conscience. We might, independent of guidance by a thorough decision of the lower court, either affirm or reverse. We perceive this to do violence to the rights of the parties to have their case weighed and decided by the trier of facts and determiner of credibility, i.e., the lower court. And even more important, such a course of action on our part would not properly recognize the great interest of this Commonwealth in the best interests and welfare of [the child]. These considerations require that we refer this case back to the court below for further review and determination of the best interests and welfare of [the child].

Commonwealth ex rel. Ulmer v. Ulmer, supra, 231 Pa.Super. at 147, 331 A.2d at 667. Also see Summers v. Summers, 273 Pa.Super. 285, 417 A.2d 651 (1979); Common wealth ex rel. Crowther v. Waida, supra; Kimmey v. Kimmey, supra.

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

      . The final order reads, in pertinent part:
      AND NOW, this 29th day of December, 1983, it is ORDERED that custody of Matthew W. Delbaugh be and is hereby awarded on a joint custody basis as follows:
      1. Commencing Wednesday, November 16th, 1983, until Wednesday evening, November 23, 1983, at 6:00 o’clock p.m. physical [sic] custody of Matthew W. Delbaugh is awarded to the natural mother, Connie R. Delbaugh, and on alternate weeks thereafter;
      2. Commencing Wednesday, November 23, 1983, at 6:00 o’clock p.m. until Wednesday, November 30, 1983, at 6:00 o’clock p.m. physical custody of Matthew W. Delbaugh is awarded to the natural father, David L. Delbaugh, and on alternate weeks thereafter;
      3. The child shall continue to attend the Nursery School he is now attending until further order of Court;
      4. That the mother have temporary physical custody of the child during weeks that the child attends Nursery School when the father has physical custody in order to transport the child to Nursery School and to have the child temporarily on hours when the child is not in attendance at Nursery School and the father is attendant at his occupation; the father to have temporary physical custody of the child during weeks in which the child attends Nursery School and the mother has physical custody on occasions when the mother is out of the area on school affairs____
      The final two paragraphs of the order discuss visitation and custody on various holidays.


author: MONTEMURO, Judge:

text:
    487 A.2d 420
    COMMONWEALTH of Pennsylvania v. William KIOSKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Jan. 18, 1985.
    Petition for Allowance of Appeal Denied Aug. 12, 1985.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    Joseph C. Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   MONTEMURO, Judge:

On March 24, 1982, appellant, William Kioske, pled guilty before the Honorable Bernard J. Podcasy, of the Court of Common Pleas of Luzerne County, to sixty-eight (68) counts of burglary, sixty-four (64) counts of theft, fifty-six (56) counts of criminal conspiracy, two (2) counts of receiving stolen property, one (1) count of criminal mischief, and one (1) count of criminal attempt. Immediately prior to sentencing, on January 11, 1983, appellant made an oral motion to withdraw his guilty plea. Following arguments on the matter, appellant’s motion was denied.

Appellant was sentenced to seven (7) consecutive terms of imprisonment: six (6) one to ten (1-10) year terms and one (1) one and one-half to twenty (1V2-20) year term. Appellant filed a timely post-sentence motion to withdraw his guilty plea and/or to modify the sentences imposed. A hearing was held on this motion on February 3, 1983, at the conclusion of which, the motion was denied. This appeal followed.

Appellant argues: (1) that the lower court erred in taking “judicial notice” that substantial prejudice would result to the Commonwealth if appellant’s pre-sentence motion to withdraw his guilty plea was granted; (2) that the lower court erred in “summarily” denying appellant’s pre-sen-tence motion to withdraw his guilty plea; (3) that the sentences imposed did not conform to the plea agreement accepted by the lower court; and (4) that the lower court erred in imposing restitution without a specific finding of appellant’s ability to make restitution and in allegedly delegating the determination of amounts of restitution.

We affirm in part and reverse and remand in part.

We begin our opinion with a discussion of appellant’s second assignment of error for the reason that our disposition of the issues raised therein renders any discussion of appellant’s first assignment of error unnecessary.

Appellant’s second assignment of error alleges that the lower court erred in “summarily” denying his pre-sentence motion to withdraw his guilty plea. In addition to specifically arguing that the lower court’s denial was “summary”, appellant also argues that the denial constituted error because the evidence offered to substantiate the Commonwealth’s claim of substantial prejudice was insufficient.

Generally, we note that Pa.R.Crim.P. 320 authorizes courts, in their discretion, to permit or direct a plea of guilty to be withdrawn at any time prior to sentencing. Requests to withdraw guilty pleas prior to sentencing are to be liberally allowed for any “fair and just” reason unless the Commonwealth will suffer “substantial prejudice” thereby. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Dorian, 314 Pa.Super. 244, 460 A.2d 1121, aff'd, 503 Pa. 116, 468 A.2d 1091 (1983).

Regarding that element of appellant’s argument that specifically alleges that the lower court “summarily” denied his pre-sentence motion to withdraw, we find that there is no support for this contention in the pertinent part of the record before us. It is clear that the lower court entertained appellant’s motion, heard arguments from both the Commonwealth and appellant, and fully set forth its reasons for denying the motion. Appellant’s motion was therefore not “summarily” denied.

Appellant’s contention that the evidence offered to substantiate the Commonwealth’s claim of substantial prejudice was insufficient and that, therefore, the lower court erred in denying appellant’s pre-sentence motion to withdraw his guilty plea, we find to be misdirected.

As noted above, courts must liberally allow pre-séntence requests to withdraw guilty pleas for any “fair and just” reason. See Forbes, supra. Only upon a defendant’s presentation of a “fair and just” reason for withdrawal will a court then consider the prejudice to the Commonwealth resulting from the withdrawal. In Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980), we stated, “While a pre-sentence withdrawal request should be liberally considered, defendant must present a fair and just reason for withdrawing the plea.” Id., 283 Pa.Superior Ct. at 29, 423 A.2d at 428 (emphasis added).

We have carefully reviewed the transcript of the January 11,1983 sentencing hearing, at the commencement of which appellant made his oral request to withdraw his plea, and we have been unable to find the presentation of any reason, “fair and just” or otherwise, in support of appellant’s requested withdrawal.

The absence of a “fair and just” reason provided the lower court with a legal basis for denying appellant’s presentence request to withdraw his guilty plea. There was no requirement that the lower court additionally find substantial prejudice to the Commonwealth. We, therefore, find that the denial of appellant’s pre-sentence request was proper and we need not reach the merits of appellant’s argument that the evidence supporting the Commonwealth’s claimed prejudice was insufficient.

Appellant’s third assignment of error alleges that the sentences imposed by the lower court did not conform to the plea agreement entered into by appellant and accepted by the lower court and that, therefore, appellant’s post-sentence motions were improperly denied. Specifically, appellant contends that the lower court’s imposition of six (6) consecutive one (1) to ten (10) year terms and a final one and one-half (IV2) to twenty (20) year term on seven (7) of the informations filed against appellant did not comply with the plea agreement, which appellant allegedly understood anticipated simply one (1) seven and one-half (7V2) to eighty (80) year term of imprisonment. Appellant argues that, as sentenced, he will have to qualify for parole at the end of each consecutive minimum term in order to be released at the end of seven and one-half (7V2) years. Although we agree that such is the consequence of the manner of sentencing, we fail to find any lack of conformance with the plea agreement.

At the March 24, 1982 hearing on appellant’s request to plead guilty, District Attorney Robert J. Gillespie, Jr., set forth the terms of appellant’s plea agreement:

MR. GILLESPIE: The Defendant [appellant], Your Honor, will enter pleas of guilty as charged. At the same time the Commonwealth would recommend to the Court and a specific part of the plea agreement that the Defendant be sentenced to a period of incarceration, the total period of incarceration would carry a minimum sentence of ... seven and-a-half years, and a maximum period of incarceration, an effective maximum period of incarceration of 80 years.

N.T. March 24, 1982, at 2-3. During the lower court’s subsequent colloquy with appellant, the lower court inquired concerning appellant’s understanding of the plea agreement:

THE COURT: If any promises, deals, or agreements have been made with you in connection with your guilty pleas, would you please state for the record your understanding of what those promises, deals, or agreements are?
THE DEFENDANT: Seven and-a-half to eighty years.
THE COURT: That would be a minimum term of imprisonment of seven and-a-half years and maximum term of eighty years. Is that correct?
THE DEFENDANT: Yes.
THE COURT: And do you understand that?
THE DEFENDANT: Yes.

N.T. March 24, 1982, at 19.

It is clear that the terms of the plea agreement as ultimately accepted by the lower court, and as understood by the appellant, provided for a minimum period of imprisonment of seven and one-half (772) years and a maximum period of imprisonment of eighty (80) years.

We are mindful that upon acceptance of the plea agreement, N.T. January 11, 1983, at 7, the lower court was bound to comply with its terms. See Comment, Pa.R. Crim.P. 319. We find that the sentences imposed upon appellant strictly complied with the terms of the appellant’s plea agreement.

Appellant’s final assignment of error challenges the lower court’s sentencing of appellant to make restitution without a specific finding of appellant’s financial capabilities and the lower court’s alleged delegation of the determination of amounts of restitution. Both the Commonwealth and the appellant argue that the lower court’s errors in these respects warrant reversing and remanding the lower court’s judgment of sentence insofar as it imposes restitution. We agree.

In Commonwealth v. Valent, 317 Pa.Super. 145, 463 A.2d 1127 (1983), we posited,

When imposing restitution, there are four factors to be considered by the sentencing court: (1) the amount of loss suffered by the victim; (2) the fact that defendant’s action caused the injury; (3) the amount awarded does not exceed defendant’s ability to pay; (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant.

Id., 317 Pa.Superior Ct. at 146, 463 A.2d at 1128. See also Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979); 18 Pa.C.S. 1106(c). Furthermore, in Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1981), we noted that sentencing courts are “not free to delegate these duties to an agency.” Id., 286 Pa.Superior Ct. at 81, 428 A.2d at 582.

As to each of the informations filed in the case sub judice, the sentencing court simply stated to whom restitution was to be made and the individual amounts thereof. Regarding any disputed amounts, the sentencing court delegated the final determination to the Luzerne County Adult Probation Department. The sentencing court additionally failed to make any specific findings with reference to appellant’s ability to make restitution or to the type of payment scheme envisioned.

We reverse and remand that part of the lower court’s judgment of sentence imposing restitution. Re-sentencing should only follow a full hearing held consistent with this opinion and our opinions in Valent, supra, and Erb, supra.

In sum, we affirm the lower court’s denial of appellant’s pre-sentence motion to withdraw his guilty plea and we affirm the lower court’s judgment of sentence as it relates to the seven (7) consecutive terms of imprisonment imposed.

We reverse and remand that part of the lower court’s judgment of sentence imposing restitution.

Affirmed in part and reversed and remanded in part. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 3502.

      . Id. § 3921.

      . Id. § 903.

      . Id. § 3925.

      . Id. § 3304.

        . Id. § 901.

      . Suffice it to say that, regarding appellant’s first assignment of error, it is apparent from the transcript of the January 11, 1983 hearing that the lower court did not in fact take "judicial notice” of substantial prejudice to the Commonwealth. We read the lower court's use of the phrase "judicial notice” to be merely a somewhat inartful announcement of its finding based upon factors which were fully set forth.

      . For some inexplicable reason, appellant refers us to Commonwealth v. Karabin, 292 Pa.Super. 374, 437 A.2d 431 (1981), wherein we found that a pre-sentence motion to withdraw a guilty plea must be responded to by the hearing court prior to the imposition of sentence. We find nothing in the record before us indicating that appellant’s motion was not responded to prior to sentencing.
      Additionally, appellant implies in his brief that the lower court somehow erred in not holding a full, separate hearing on appellant’s pre-sentence motion. Given the adequacy of the lower court’s impromptu hearing on the matter, we find that a separate hearing was unnecessary. Compare, Commonwealth v. Smith, 295 Pa.Super. 361, 441 A.2d 1273 (1982) (denial of post-sentence motion to withdraw guilty plea without a hearing not error).

      . It should be noted that the plea agreement at issue was not set forth in a separate writing and is recorded only as articulated in the transcript of the March 24, 1982 hearing. See N.T. March 24, 1982, at 19-20.

      . Appellant additionally argues that, pursuant to 42 Pa.C.S. § 9757, the lower court was required to state on the sentencing record the total minimum sentence of the consecutive sentences imposed, and that the lower court failed to do so. We find this argument to be wholly unsupported by the record. See N.T. January XI, 1983, at X3-X4.

      . 18 Pa.C.S. § 1106.


author: JOHNSON, Judge:

text:
    487 A.2d 424
    Ronald E. RESSLER and Fred V. Hertwig, Jr., Appellants, v. JONES MOTOR CO., INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Jan. 18, 1985.

      Thomas A. Ehrgood, Lebanon, for appellants.
    Michael J. Ossip, Philadelphia, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Appellants Ressler and Hertwig brought suit on behalf of themselves and a class of non-union employees of appellee Jones Motor Company’s now defunct General Commodities Division (“GCD”), seeking recovery of sums withheld from their wages as “contributions” to an Earnings Participation Plan (“EPP” or “Plan”). The Plan placed salaries on a sliding scale varying as a function of the employer’s profit or loss ratio, and was instituted by Jones Motor during a period of significant financial hardship. The trial court found no violation of the Commonwealth’s Wage Payment and Collection Law (“WPCL”), and granted summary judgment on behalf of Jones Motor upon a determination that the “contributions” to the Plan were wage reductions. Appellants’ motion for certification of a class action under Pa.R.C.P. 1707 was also denied without discussion. Because we find sufficient evidence in the record to establish that the sums withheld were “deductions” from pay, we reverse the trial court’s order granting summary judgment to the employer.

Our survey of the statutes and case law of this Commonwealth uncovers no definition of the term “deduction” as set forth in the WPCL beyond a group of specified “authorized deductions.” [See infra at 606-609]. Therefore, a clear recitation of the events giving rise to this controversy is in order to establish precisely what type of salary adjustment we are here deeming to be a “deduction” from pay.

In 1979, the GCD began to suffer serious financial losses, which continued through 1980 and into 1981. In a desperate effort to reduce these losses, the EPP was instituted, which placed salaries on a sliding scale varying according to the GCD’s ratio of total expenses to total revenues. According to the Plan proposal, when this ratio equals 95%, employees would draw their regular salaries. If the ratio is 96% or above, employees would “contribute” to the Plan based upon a figure related to the ratio and their wage brackets, with the amount withheld varying at each expense ratio. The proposal indicates further that if the expense ratio falls below 100%, “a lump sum adjustment payment will be made to plan participants.” Even where the expense ratio falls to 94% or below, all employees, regardless of wage bracket, receive the same percentage bonus, calculated at each expense ratio.

Prior to implementation of the Plan, Jones Motor’s management, including the named appellants, met with employees and explained the EPP, promoting it in terms of the company’s ultimate survival. A key to the Plan’s effectiveness was obtaining 100% participation by all employees, union and non-union alike. Approximately 97% of the GCD employees signed authorization forms agreeing to participate and stating they would be legally bound to “make contributions or receive benefits under the Plan.” The EPP was implemented on June 14, 1981, at which time the expense ratio was 112%, resulting in smaller paychecks for all employees.

After approximately three months, a Delaware Teamster’s Union local filed a grievance claiming the Plan violated their collective bargaining agreement. Jones Motor agreed to discontinue the Plan for its union employees, and paid back the “contributions” they had already made.

Jones Motor continued the EPP with its non-union employees, but it proved to be an insufficient cost-cutting mechanism, and the GCD ceased operations on October 29, 1982. Appellants brought suit in the Court of Common Pleas of Lebanon County on behalf of themselves and a group of non-union employees for recovery of their “contributions,” claiming they were withheld in violation of the WPCL. The amended complaint alleged breach of contract under the terms of the EPP agreement, and appellants further sought certification of a class action.

The trial judge determined the EPP to be “nothing more than a program of wage reductions (or increases should the company reenter a period of prosperity) dressed up in a fancy name to be more acceptable to the employees; ...” and found no provisions “which, by any interpretation, would infer that the Defendant’s employees could expect a return of the reduction which they realized in their paychecks.” Opinion of July 26, 1983 at ll. The court granted Jones Motor’s motion for summary judgment, and denied appellants’ motion for certification of a class action without discussion. Upon careful examination of the record, however, we believe the “contributions” withheld by Jones Motor from its employees’ paychecks were wage deductions, thus raising a genuine issue of material fact as to conformity with the law of this Commonwealth.

Viewing the EPP in its entirety, it is clear to us that the sums withheld from employees’ paychecks were deductions from earnings rather than reductions in salary. As noted previously, the “contributions” or “benefits” were to be calculated at each expense ratio level. There appears to be no fixed or easily ascertainable sum which would be withheld or paid out, and we find such indefinite, unpredictable amounts to more closely resemble deductions than reductions as held by the trial court. Furthermore, Jones Motor’s President Sheehy, in a letter dated September 25, 1981, stated: “In order to avoid a possible strike action while we attempt to resolve the E.P.P. issue, I am temporarily suspending the payroll deductions for E.P.P. contributions from union personnel. The non-union personnel will be required to continue the participation.” [Emphasis added].

Finally, and perhaps most persuasive, we find a letter dated July 22, 1982, from the Director of the Department of Labor and Industry’s Bureau of Labor Standards. Responding to a request by Jones Motor’s Vice President and General Counsel for clarification of a claim by a former terminal manager, the director states:

[The employee] advised us that $85.80 was deducted from his earned wages each pay period for a total of 20 pay periods from June 20 through October 30, 1981; a total of $1716.
Our claimant maintains he signed no authorization for the deduction in question which is identified on his pay slip as EPP contribution.
Unless Jones Motor can produce an authorization signed by [the employee] to permit this deduction we must consider said deduction illegal under the Wage Payment and Collection Law.

This letter is significant at this point in our analysis because it is the only indication we find in the record that the contributions were identified on employees’ pay slips as an amount presumably subtracted from gross pay. Common sense dictates that salary reductions would not be so designated. This supports a conclusion that we are here dealing with deductions, much like any other type of deduction which would be noted on a pay slip. We must therefore turn to the WPCL to determine whether the amounts in question were lawfully withheld from employees’ wages.

The Wage Payment and Collection Law states, in pertinent part:

260.3 Regular payday
(a) Wages other than fringe benefits and wage supplements. Every employer shall pay all wages, other than fringe benefits and supplements, due to his employes on regular paydays designated in advance by the employ-er____ The wages shall be paid in lawful money of the United States or check, except that deductions provided by the law, or as authorized by regulation of the Department of Labor and Industry for the convenience of the employe, may be made including deductions of contributions to employe benefits plans, which are subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. [Emphasis added]
(b) Fringe benefits and wage supplements. Every employer who by agreement deducts union dues from employes’ pay or agrees to pay or provide fringe benefits or wage supplements, must remit the deductions or pay or provide the fringe benefits or wage supplements, as required, within 10 days after such payments are required to be made to the union in case of dues or to a trust or pooled fund, or within 10 days after such payments are required to be made directly to the employe, or within 60 days of the date when proper claim was filed by the employe in situations where no required time for payment is specified.

43 P.S. § 260.3, supra n. 1.

Pursuant to this provision, 34 Pa.Code § 9.1 sets forth those deductions from wages authorized by law as promulgated by the Department of Labor and Industry. The first twelve provisions delineate such deductions as, for example, contributions to employee welfare and pension plans, payments to credit unions and savings funds, contributions for charitable purposes, deductions for social security and taxes, labor organization dues, and other specified deductions. Deductions which are not listed under 34 Pa.Code § 9.1 (1-12) may fall under 34 Pa.Code § 9.1(13): “Such other deductions authorized in writing by employes as in the discretion of the Department is proper and in conformity with the intent and purpose of the Wage Payment and Collection Law (43 P.S. §§ 260.1~260.12).” [Emphasis added].

Although Jones Motor obtained written authorizations from its employees, the record does not establish that the Department evaluated the EPP and determined the Plan to be in conformity with the WPCL. Appellee directs us to the Department’s July 22, 1982 letter, referred to supra, claiming this establishes departmental approval of the Plan. We do not find this letter controlling in construing the entire EPP program as lawful. Absent departmental approval, the Plan was invalid, and Jones Motor wrongfully withheld wages due to its employees. An inquiry is therefore necessary on the factual issue of whether the Department of Labor and Industry evaluated and authorized the EPP as in conformity with the intent and purpose of the WPCL, and summary judgment was inappropriately granted.

Pa.R.C.P. 1035(b) provides that summary judgment will be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is well established that the moving party has the burden of showing that there is no genuine issue of material fact, and the record must be viewed in the light most favorable to the non-moving party. First Mortgage Company of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983). The non-moving party may not, however, rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973).

Upon examination of the pleadings, the summary judgment motion and supporting materials, the trial court found no genuine issue of material fact left for resolution. Turning to an affidavit submitted by appellant Hertwig, the trial judge asserted that Pa.R.C.P. 1035(d) precluded consideration of most of the statements the affidavit contained. Pa.R.C.P. 1035(d) provides that “[supporting and opposing affidavits shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein.” The trial court dismissed Hertwig’s affidavit either as not within the affiant’s personal or first-hand knowledge, or as conclusions of law inappropriate in a supporting affidavit. The court thus found neither a significant dispute nor the raising of a genuine issue as to any material fact. Our examination of the relevant materials, however, indicates the existence of a genuine issue of material fact. We therefore reverse the granting of summary judgment, finding a significant dispute regarding departmental approval of the EPP.

Department of Labor and Industry evaluation of a proposed deduction would necessarily analyze conformity with the “intent and purpose” of the WPCL. We find it helpful here to consider what those purposes might be.

In Weingrad v. Fischer & Porter Company, 47 D. & C.2d 244 (C.C.P. Bucks Co.1968), the court provided a thoughtful analysis of the Wage Payment and Collection Law (in denying recovery to plaintiff by holding said statute to provide only for wages earned prior to termination of employment). Finding no cases directly bearing upon the question presented, the court turned to authority pertaining to the purpose for enacting similar statutes in other jurisdictions. The court quoted from the Supreme Court of Oregon in State ex rel. Nilsen v. Oregon State Motor Assn., 248 Or. 133, 138, 432 P.2d 512, 515 (1967):

“The policy of the statute is to aid an employe in the prompt collection of compensation due him and to discourage an employer from using a position of economic superiority as a lever to dissuade an employe from promptly collecting his agreed compensation ... The smaller the amount of the unpaid compensation the greater is the need for assistance in effecting collection.”

The court in Weingrad cited similar interpretations by the Supreme Court of Missouri and the Court of Appeals of New York, and concluded: “It is clear from the foregoing that the purpose of statutes of this nature is to effect a quick payment of wages or compensation due in order to undercut any position of economic superiority possessed by the employer.” Weingrad, supra at 251 (emphasis in original). See also Commonwealth v. Lieberman, 70 D. & C.2d 151 (C.C.P. Dauphin Co.1975) (an employee may not initiate criminal proceedings under the WPCL; Wickersham, J., writing for the Court of Common Pleas, finds the goal of the act, as enunciated in Weingrad and Oregon State, may be adequately achieved under the civil remedy provisions).

The Weingrad court was obviously concerned with the aspect of “wages due”, but we believe the notion of economic superiority exercised by an employer in the payment (or non-payment) of wages is of equal import. If Jones Motor instituted a plan at will to allow for deductions from its employees’ wages, we view this as the type of economic coercion which the statute addresses, and which the Department of Labor and Industry is empowered to regulate. Moreover, the Department, in promulgating the Act, has carefully delineated those deductions which are permitted. Provisions 1 through 12 of 34 Pa.Code § 9.1 specifically set forth acceptable deductions and we believe public policy, and no less common sense, dictates that the Department have equal, if not greater, concern for those deductions which are not enumerated, but fall under 34 Pa.Code § 9.1(13) (“other deductions”). An earnings plan which affects wage payments deserves close scrutiny by the state agency empowered to assure that the interests of employees are protected. We therefore hold that a deduction from wages as herein described in the case before us is unlawful absent a showing of Department of Labor and Industry approval and written authorizations by employees.

This decision is not in any way intended to impair the ability of an employer or employee to modify the terms of an employment contract. Indeed, the law of this Commonwealth permits an employer to reduce the salary of an employee hired at will where the employee acquiesces in or agrees to the change. See Trainer v. Laird, 320 Pa. 414, 183 A. 40 (1936). However, when an employer establishes a so-called earnings participation plan such as the EPP herein described, there is an obligation to analyze the plan to determine exactly what is involved. Our examination of Jones Motor’s plan indicates that it is not an acceptable means of modifying salaries, and it therefore does not rise to the level of lawful wage reductions.

In response to appellants’ first contention that the trial court erred in deferring consideration of appellants’ motion for certification of a class action, we note that Pa.R.C.P. 1707(b) authorizes the trial judge to stay all class action aspects of the litigation pending the disposition of other motions. See Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1983). It is clearly within the trial court’s discretion, and we find no error in deferring a class certification hearing while a motion for summary judgment is pending. However, our conclusion that appel-lee was not entitled to judgment as a matter of law due to the existence of a genuine and material factual issue requires that the trial court now reconsider appellants’ cause of action. Thus, we reverse the granting of summary judgment on behalf of appellee Jones Motor Co., vacate the denial of the motion for certification of a class action, and remand with directions to proceed in accordance with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . Act of July 14, 1961, P.L. 637, § 1, et seq., as amended, 43 P.S. § 260.1, et seq.

      . The court commented at footnote 3 of its opinion that, consistent with holding that the adjustments were “reductions” in wages as opposed to "deductions” from wages, the “contributions” under the EPP were not subject to payroll taxes, based upon statements of Jones Motor’s President Sheehy to this effect. We note, however, that it is not for Mr. Sheehy to determine what qualifies as a wage for tax purposes, and find no mention in the record of any Internal Revenue Service advisory opinion on the matter.

      . “One of the objects of the statute is to effect a quick payment to the wage earner of wages due and unpaid at time of discharge.” Monte-rosso v. St. Louis Globe-Democrat Publishing Co., 368 S.W.2d 481, 489 (Mo. 1963).

      . "The law affords wage earners ample civil remedies for the purpose of assuring them full payment of all ... benefits accruing to them under their contract of employment." People v. Vetri, 309 N.Y. 401, 408, 131 N.E.2d 568, 572 (1955).

      . Where appellant was hired at will pursuant to an oral agreement, our supreme court stated the contract "was subject to termination at any time by either party, and the employer or employee could modify it without limitation as the employer here did.” Trainer v. Laird, 320 Pa. at 415, 183 A. at 40.


author: HESTER, Judge:

text:
    487 A.2d 430
    John RULLI v. Daniel T. DUNN, Warren L. Shaffer, and Pennsylvania State Police, Appellants.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Jan. 25, 1985.

      Sheila M. Ford, Pittsburgh, for appellants.
    Louis P. Vitti, Pittsburgh, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This is an appeal from an Order of Court holding appel- . lants David T. Dunn, Warren L. Shaffer, and the Pennsylvania State Police in contempt for failing to expunge appel-lee’s criminal record.

Appellee compiled a criminal record between 1961 and 1964. Following a period of non-criminal activity, he applied for and received a full gubernatorial pardon on November 26, 1975. Appellee had relocated in Las Vegas, Nevada and became employed at a casino there. In order to protect his career, he petitioned the Court of Common Pleas of Allegheny Courts for expungement of his criminal record. On June 12, 1979, appellee’s petition was granted and an order was entered directing the expunction of all documents relating to his criminal record.

Several years later, appellee was unexpectedly discharged from his employment in Nevada. An investigation into his discharge revealed that the Pennsylvania State Police had refused to comply with the Order of June 12, 1979, and that information concerning his criminal record was made available to his employer.

Appellee filed a motion in the nature of a petition for enforcement requesting the lower court to direct the State Police to comply with the expungement order. Following a hearing on August 19, 1982, appellants were cited by the lower court for contempt and directed to comply with said order within ten days or face sanctions. Appellants filed this appeal on or about August 25, 1982 and thereafter requested and received a stay of the order of August 19, 1982.

Initially we note that the order entered against appellants must be characterized as a civil contempt citation. Contempt can be categorized as criminal or civil in nature. Bruzzi v. Bruzzi, 332 Pa.Super. 346, 481 A.2d 648 (1984). Each enjoys its own discrete procedures and each confers distinct procedural rights. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979). In determining whether the contempt constitutes civil or criminal, we must ascertain the dominant purpose of the contempt proceeding. Bruzzi v. Bruzzi, supra. If the purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a criminal contempt hearing. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968). Proceedings to enforce compliance with a court order are considered civil in nature when “the act of contempt complained of is a refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party.” Id., 429 Pa. at 522, 241 A.2d at 340.

The purpose of a civil contempt citation is a remedial one, to coerce the contemnor into compliance with the order of court. To compel obedience, either sanctions or imprisonment may be imposed in order to accomplish the remedial goal of affording relief to the one aggrieved. In re Tasseing H., 281 Pa.Super. 400, 409, 422 A.2d 530, 535 (1980).

The order in the instant case instructed appellants to comply with the expunction order within 10 days or face sanctions. Prior to the expiration of this time period, and before sanctions were imposed, this appeal ensued. Consequently, appellants do not yet stand in contempt of court. It has been recognized by this Court that, until sanctions or imprisonment are imposed, an order declaring a party in contempt is interlocutory. Hester v. Bagnato, 292 Pa.Super. 322, 323, 437 A.2d 66 (1981). See also In re Koll, 311 Pa.Super. 212, 457 A.2d 570 (1983); Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 419 A.2d 1285 (1980). Absent a timely petition for permission to appeal an interlocutory order, see 42 Pa.C.S.A. § 702, this Court’s jurisdiction is limited to “appeals from final orders of the courts of common pleas...” 42 Pa.C.S.A. § 742. Regretfully, in the face of this interlocutory order, we lack jurisdiction and are constrained to quash this appeal.

Appeal quashed.


author: CIRILLO, Judge:

text:
    487 A.2d 432
    Nancy HARKA, Administratrix of the Estate of Loretta Lauer, Deceased, v. Ismail NABATI, M.D., Douglas R. Stutzman, M.D., and Muhlenberg Medical Center and William F. Strauch and Roger P. Faust. Appeal of MUHLENBERG MEDICAL CENTER. Nancy HARKA, Administratrix of the Estate of Loretta Lauer, Deceased, v. Ismail NABATI, M.D., Douglas R. Stutzman, M.D., and Muhlenberg Medical Center and William F. Strauch and Roger P. Faust. Appeal of Ismail NABATI, M.D. Nancy HARKA, Administratrix of the Estate of Loretta Lauer, Deceased, v. Ismail NABATI, M.D., Douglas R. Stutzman, M.D., Muhlenberg Medical Center and William F. Strauch and Roger P. Faust. Appeal of Douglas R. STUTZMAN, M.D.
    Superior Court of Pennsyvlania.
    Argued Oct. 17, 1984.
    Filed Jan. 16, 1985.

      Barbara L. Hollenbach, Bethlehem, for Muhlenberg, appellant (at 2485) and appellee (at 2522 and 2523).
    Mark H. Scoblionko, Allentown, for Nabati, appellant (at 2522) and appellee (at 2485 and 2523).
    William P. Leeson, Bethlehem, for Strauch, appellee. JoAnne Kelhart, Easton, for Harka, appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Northampton County, which granted appellees’ motion for summary judgment. We affirm.

On April 19, 1980, Loretta Lauer was walking along a road when she was struck by a roll of chainlink fencing that fell from a vehicle operated by appellee William Strauch. Lauer was taken to the emergency room of Muhlenberg Medical Center. She died shortly thereafter.

Nancy Harka, administratrix of Lauer’s estate, instituted two wrongful death and survival actions. The first action named Strauch and appellee Roger Faust as defendants. The complaint alleged that Strauch and Faust negligently loaded and secured to the vehicle the fence that struck decedent. Appellants Ismail Nabati, M.D., Douglas Stutz-man, M.D., and Muhlenberg Medical Center were joined as additional defendants. A second action was subsequently instituted against the doctors and the hospital, who in turn joined Strauch and Faust as additional defendants.

In the first action, Harka entered into a settlement agreement with Strauch and Faust. In consideration for a release from all liability arising from the accident, Strauch and Faust paid Harka $100,000. The agreement specifically recited that the release was not intended to release the doctors or the hospital in the second action.

On the basis of the release, Strauch and Faust moved for summary judgment in the second action. The Honorable Alfred T. Williams, Jr. granted the motion, and held that Strauch and Faust, and the doctors and the hospital were not joint tortfeasors. Therefore, there was no right of contribution among the parties. The doctors and the hospital have appealed this order.

I.
Appellants frame the first issue for our review as: When plaintiff institutes two actions seeking damages for the death of her decedent, one suit alleging that the death was caused by the negligent operation of a motor vehicle and the second suit alleging that the death was caused by medical malpractice, are the motor vehicle defendants, who settled with the plaintiff but who are additional defendants in the medical malpractice action, entitled to summary judgment on the basis that they and the medical malpractice defendants are not joint tortfeasors?

Essentially the issue is whether appellants and appellees in the instant action are joint tortfeasors.

The resolution of this issue is controlled by our decisions in Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982), and Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). Although Voyles and Lasprogata are factually distinguishable from the case at bar, “[i]n legal principle, ... we see no difference.” Voyles, supra, 295 Pa.Super. at 132, 441 A.2d at 384.

Lasprogata involved a plaintiff who was injured in an automobile accident and subsequently underwent medical treatment for a fractured femur. Plaintiff alleged that his injury was aggravated by the treatment. Two actions were instituted: one against the driver of the automobile, and one against the treating physician, who joined the driver as an additional defendant. The suit against the driver was settled, and he was released from further liability. The driver moved for summary judgment in the second action, which the trial court granted. We affirmed.

In Voyles, the plaintiff was injured when his motorcycle was struck by an automobile; he suffered severe injuries to his leg. He was admitted to a hospital for treatment, but eventually, the leg was amputated. Plaintiff instituted three actions: one against the driver of the car, and two suits against individual doctors, each of whom joined the driver as an additional defendant. The suit against the driver was settled, and a release was executed. As in Lasprogata and the instant case, the driver moved for summary judgment, which was granted. We affirmed.

In each of these cases we recognized that “[whether liability for harm to a plaintiff is capable of apportionment is a question of law for the court, not a question of fact for the jury.” Voyles, supra, 295 Pa.Super. at 130, 441 A.2d at 383; Lasprogata, supra, 263 Pa.Super. at 181, 397 A.2d at 806.

In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, courts consider several factors:
the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential, responsibility of the defendants for the same injuria as distinguished from damnum. Pros-ser, Law of Torts, § 46 n. 2 (4th ed. 1971) (footnotes omitted).

Voyles, supra. Moreover, in Lasprogata, we stated:

Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors____ The acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff. While they are two active tortfeasors they are not actually acting “jointly” when using that term in the strict sense. As we have held in Embrey v. Borough of West Mifflin et al., 257 Pa.Super. 168, 390 A.2d 765 (1978), to the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly. This apportionment does not necessarily follow the statutory rules for contribution among tortfeasors applicable in situations where such tortfeasors are characterized as joint. Instead, where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable.

Id., 263 Pa.Super. at 179-80, 397 A.2d at 805 (citations and footnotes omitted). See also Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982).

As to the instant matter, we hold that appellants and appellees are not joint tortfeasors. Without question, appellants and appellees owed different duties to decedent; the evidence that would be utilized against each defendant is clearly different; there is very little identity of facts as to time or place of injury; neither had the opportunity to guard against the other’s acts; and as to the identity of the cause of action against each of the defendants, while similar allegations were set forth in the complaints, the nature of each action is unquestionably different. As the learned trial judge noted in his opinion:

Negligence alleged against a physician in a wrongful death action will necessarily involve different legal theories and defenses, different evidentiary problems, and different factual determinations than would a negligence action against a truck driver who negligently loaded his vehicle in a dangerous manner. Ironically, it is the defendants themselves who will seek to prove that the injuries to the plaintiff’s decedent are indeed divisible, who will attempt to prove that the negligent conduct of the additional defendants was the sole cause of the death of the plaintiff’s decedent, and who will claim that their own conduct was severable from the conduct of the additional defendants.
II.
The second issue raised by appellants is:
Under these circumstances, even if the motor vehicle defendants and the medical malpractice defendants are not joint tortfeasors, are the motor vehicle defendants entitled to summary judgment when the Comparative Negligence Act permits contribution among negligent defendants who are not joint tortfeasors?

In essence, appellants are asking us to find that, under the Comparative Negligence Act, 42 Pa.C.S. § 7102, they are entitled to contribution from Strauch and Faust even though they are not joint tortfeasors.

Initially, we are mindful that “statutes are not presumed to make changes in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.” Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887 (1976). Accord Truck Terminal Realty Co. v. Commonwealth Department of Transportation, 486 Pa. 16, 403 A.2d 986 (1979); Bartly v. Concrete Masonry Corp., 322 Pa.Super. 207, 469 A.2d 256 (1983). At issue in this case is the effect of Section 7102(b), which provides:

(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

We have held that “the right of contribution exists only between joint tortfeasors. Contribution distributes the loss equally or each joint tortfeasor pay his or her pro rata share.” Lasprogata, supra, 263 Pa.Super. at 178 n. 2, 397 A.2d at 805 n. 2 (emphasis in original). See also Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981). We can find nothing in the statute that suggests any change in this rule of law. Several federal district court cases, considering the statute in different contexts, have held that section 7102 did not change prior Pennsylvania law. See e.g., Young v. Verson Allsteel Press Co., 524 F.Supp. 1147 (E.D.Pa.1981); Seneca Trials, Inc. v. Snyder, 7 B.R. 128 (W.D.Pa.1980).

Moreover, any suggestion by appellants that appellees’ presence at trial is required is without merit. In Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), we reviewed section 7102 in the context of joining an employer as an additional defendant or involuntary plaintiff for the purpose of apportioning negligence. While Kelly is easily distinguishable from the case at bar, we find Judge Wieand’s analysis applicable.

[T]his statute does not provide for apportionment among all tortfeasors causally responsible for an injury. “It merely provides for apportionment among those defendants against whom recovery is allowed. There is no suggestion in that statute that all possible tortfeasors be brought into court, and certainly no requirement that this be done to achieve the purposes of the act. The trier of fact is simply to apportion liability on a percentage basis among those defendants on the record against whom recovery is allowed.”

Id., 307 Pa.Super. at 367, 457 A.2d at 627 quoting Ryden v. Johns-Manville Products, 518 F.Supp. 311, 316 (W.D.Pa. 1981). Accord Young v. Allsteel Press Co., supra.

Therefore, we hold that section 7102(b) applies to joint tortfeasors who are properly before the court. Furthermore, to find that appellees’ presence at trial is necessary in order to determine the damages appellants may be obliged to pay, would not only deter settlement of actions and waste judicial resources, but it would also give rise to a result clearly unintended by the drafters of the statute.

Affirmed.


author: LIPEZ, Judge:

text:
    487 A.2d 820
    TECHALLOY COMPANY, INC., Appellant, v. RELIANCE INSURANCE COMPANY and Planet Insurance Company.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Dec. 28, 1984.
    Reargument Denied Feb. 21, 1985.

      William J. Lehane, Philadelphia, for appellant.
    Jan E. DuBois, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from the Order of the Court of Common Pleas of Montgomery County, granting the preliminary objections of the defendants/appellees, Reliance Insurance Company and Planet Insurance Company (hereinafter “Reliance”), and dismissing the complaint of plaintiff/appellant, Techalloy Company, Inc., (hereinafter “Techalloy”) for failure to state a cause of action.

i.

The facts underlying Techalloy’s complaint developed as follows: On May 20, 1981, James Peterman filed a class action suit against Techalloy, a corporation engaged in the business of cutting and stripping steel, alleging Techalloy had recklessly dumped or stored trichloroetheline (TCE), a chemical used by Techalloy in that process. Peterman claimed that exposure to, contact with or ingestion of TCE, a hazardous and toxic chemical, may have caused serious injury, including neurological, pulmonary, hepatic and renal damage with possible mutagenic, teratogenic and carcinogenic results. In addition, Peterman alleged that as a result of Techalloy’s negligence, the plaintiff class suffered an increased risk of serious illness or death due to actual ingestion and/or use of contaminated water and suffered from high anxiety because of the awareness of this risk. Peterman sought the creation of a trust fund for the payment of present and future medical expenses, as well as compensatory damages.

Relying on the comprehensive general liability policy which Techalloy had procured from Reliance in 1976, Te-challoy submitted to its insurance carrier a copy of the Peterman complaint, requesting that Reliance defend Te-challoy in accordance with the terms of the policy. Reliance denied coverage on the ground that the complaint alleged neither property damage nor bodily injury, and also incorporated by reference a letter sent to Techalloy more than a year earlier which set forth additional reasons for the denial. Consequently, Techalloy employed private counsel who successfully defended that suit, and then initiated the action preceding this appeal seeking as damages the expenses incurred in the Peterman defense plus costs of the present appeal.

Before trial, Reliance filed preliminary objections in the nature of a demurrer to Techalloy’s complaint maintaining that there was no duty to defend Techalloy in the Peterman action because the Peterman complaint did not specifically allege present bodily injury in conformance with the policy definition of personal injury. Reliance also invoked a policy exclusion which was first brought to Techalloy’s attention in a letter dated April 28, 1980, and which informed Techal-loy that the water contamination caused by the TCE was not sudden and accidental and therefore would not be covered by that particular policy. In support of its argument, Reliance referred to several allegations in the Peter-man complaint which described in detail the nature of the damages incurred and the circumstances surrounding the chemical discharge.

The court below granted Reliance’s preliminary objections and dismissed Techalloy’s complaint on the premise that the insurer had no duty to defend the action when the underlying complaint did not allege actual personal injury. The court did not address the issue of the policy exclusion. It is upon that basis, however, which we affirm the decision of the trial court. We disagree with the opinion of the court below that the Peterman complaint failed to allege personal injury within the boundaries of an insurance policy. Because the personal injury issue before us is one of first impression for our courts, we discuss both that and the policy exclusion in this opinion.

II.

The procedural disposition of this case binds us to a stringent standard of review. If the facts pleaded in the complaint, together with all inferences reasonably deducible therefrom, are sufficient to support a finding that a claim for personal injury was made, no matter how tenuous, we should refuse to sustain the demurrer on that basis. Gray v. Gray, 275 Pa.Super. 131, 134, 418 A.2d 646, 648 (1980); Girard Trust Bank v. Life Ins. Co. of North America, 243 Pa.Super. 152, 157, 364 A.2d 495, 498 (1976) (allocatur refused). We are also mindful of the special context in which insurance contracts are scrutinized and remain careful in this case to assess the facts in view of the general principles of insurance law which apply.

Words of an insurance policy which are unambiguously written should be construed according to their plain and ordinary meaning, Pennsylvania Manufacturers’ Ins. Co. v. Aetna Casualty and Surety Ins. Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967), and we should give effect to that language. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). If, however, a term is susceptible to two interpretations or subject to reasonable question, it should be liberally construed in favor of the insured. C. Raymond Davis & Sons, Inc. v. Liberty Mutual Ins. Co., 467 F.Supp. 17, 20 (E.D.Pa.1979); Hofing GMC Truck, Inc. v. Kay Wheel Sales Co., Inc., 543 F.Supp. 414, 419 (E.D.Pa.1982). Most importantly, in close or doubtful cases, we should find coverage for the insured, and if we err in interpreting a policy provision, we should err in favor of the insured. Motley v. State Farm Mutual Automobile Ins. Co., Inc., 502 Pa. 335, 340, 466 A.2d 609, 611 (1983).

A. Interpretation of “Personal Injury”

Because words which are unambiguous in one context may become susceptible to more than one interpretation when applied to a particular set of facts, it is incumbent upon the insurance company, as draftor of the policy, to delineate as precisely as possible the full extent of coverage or bear the consequences for failing to do so. Collister v. Nationwide Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978) cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). Precise definition is particularly important in cases in which an insured purchases a comprehensive general liability policy to protect a business which entails the use of potentially harmful substances possessing debilitating qualities of unknown parameters. In that instance, the insurance company providing coverage should take extra care to assure that the policy leaves no room for question, at peril of being forced to pay for greater coverage than anticipated. Delaware County Construction Co. v. Safeguard Ins. Co., 209 Pa.Super. 502, 509, 228 A.2d 15, 18 (1967).

While an insurer is not required to defend an insured against every claim, it is firmly established that an insurer must defend any suit in which from the face of the complaint there exists actual or potential coverage. Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320, 321-22 (1963). The dispute here encountered is whether the allegations set forth in the Peterman complaint sufficiently raise claims of personal injury to fall within the meaning of the policy. It is at this juncture that we disagree with the decision of the lower court and agree with Techalloy.

Given the particular considerations which obtain to insurance contracts, we believe the only fair conclusion to be that Peterman alleged personal injury. Even if the allegations were not of sufficient particularity to be cognizable and compensable under Pennsylvania tort law, they were sufficient at least in the context of the contractual obligation of “bodily injury, sickness or disease” as defined in the policy. While “personal injury” may be most traditionally construed as a physical injury overtly manifested, that is not its exclusive construction. Furthermore, it is hardly speculative to say that Techalloy reasonably expected, by purchasing the policy, to be insured against financial obligations stemming from charges such as those raised by Peterman. Unfortunately, the only construction of the policy which is consonant with that objective is the one which the lower court denied.

In the original Peterman action, the trial judge held for Techalloy on the basis that “[e]ven if plaintiffs allegation at paragraph 4 of his complaint that he may possibly have sustained some injury is read to allege that he may have a present injury, such a claim is palpably insufficient to meet the requirement of present injury.” (emphasis in original). As we understand this, Peterman alleged insufficient present injury upon which to sustain his cause of action. This assessment is proper when the cause of action alleged is negligence. It should not be the standard, however, for determining the rights and duties of parties to an insurance contract. Such a strict construction of personal injury would result in the insured’s being denied coverage when he would most reasonably expect it and would defeat in total the purpose of the policy. It also would equate the duty to defend with the duty to indemnify, which is contrary to the law in cases such as the present in which the insurer contracted to defend even “groundless, false or fraudulent” accusations. See Gedeon, 410 Pa. at 58, 188 A.2d at 321-22, (The obligation to defend arises whenever the complaint may potentially come within coverage of the policy, even if the actual outcome requires no indemnification.); C. Raymond Davis & Sons, Inc., 467 F.Supp. at 19, (An insurer must defend its insured if there is potential coverage because the duty to defend is broader than the duty to indemnify.).

It is apparent that the policy before us is thus susceptible to the following two interpretations: (1) personal injury means physical injury caused by external violence, as advanced by Reliance; and (2) at a minimum, personal injury encompasses allegations of exposure to a hazardous substance, increased risk of injury, anxiety, various internal disorders and tissue damage, as advanced by Techalloy. This compels us to liberally construe the term in Techalloy’s favor. In this manner we will not defeat, without a clear necessity, the claim to coverage which was Techalloy’s objective in securing the policy. Koser v. American Casualty Co., 162 Pa.Super. 63, 64, 56 A.2d 301 (1948) (allocatur refused).

For their persuasive reasoning and instructive value, we draw analogy to a series of cases which evolved from the discovery of diseases associated with asbestos products. A common issue, for purposes of determining which insurance company was on risk, was when did the injury occur when exposure to the hazardous element did not result in immediate manifestation of the disease.

In the case of Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1107, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982), reh’g denied, 456 U.S. 951, 102 S.Ct. 2024, 72 L.Ed.2d 476 (1982), the court had to determine the extent to which each of a number of insurance companies was liable when Keene, a manufacturer of products containing asbestos, was named as a co-defendant in litigation involving manufacturer’s liability for asbestos-related diseases. Controversy arose because each company had issued a comprehensive general liability policy to Keene but at varying times. The key to determining which company was liable lie in the court’s ability to ascertain when the injury complained of occurred: when the plaintiffs were first exposed to the asbestos or when the disease later became physically manifest.

The court acknowledged that in the particular circumstances surrounding the suit, each insurance company had failed to “develop policy language that would directly address the full complexity entailed by asbestos-related diseases.” Id., at 1041. Giving due consideration to insurance concepts, the Keene court held that for purposes of insurance coverage, each insurer with a policy in effect from the time the plaintiffs were initially exposed to the asbestos until their diseases became physically manifest would be liable to Keene for indemnity' and defense costs. Stated plainly, injury occurred, for insurance purposes, at the time of the exposure to the hazard causing substance. The court deduced that it would be inconsistent with the objective of insurance protection to hold that there was no coverage when the injurious process began if there clearly would be coverage had the diseases become apparent spontaneously upon inhalation. Consequently, any part of the injurious process was sufficient to constitute bodily injury in accordance with the policies.

The better reasoned approach in the case before us dictates that from the perspective of Peterman’s allegations, Reliance erroneously constricted the purview of personal injury. The insurer’s denunciation of the “exposure” theory” as “completely irrelevant and inapplicable” is misguided. Reliance distinguishes the asbestos cases on the ground that in those suits plaintiffs at time of trial had already developed asbestosis and other asbestos-related illnesses. This distinction is inapposite. The relevance attaches insofar as in both the asbestos cases and the case at bar, the courts had to determine if and when an insurance company would be liable when the manifestation of a disease was not simultaneous with its inception. Although exposure may not be a new theory of tort liability as espoused by Techalloy, it is relevant for our purposes of deciding whether the Peterman complaint alleged an injury within the meaning of Techalloy’s insurance coverage.

Our decision here should be read only in the context of the insurance interpretation in which it is made. It should not be understood that we are assuming that any member of the plaintiff class will at any time in the future suffer that type of physical manifestation which would afford compensation under the law. Rather, we hold that the term personal injury, modified only by the standard insurance industry definition of “bodily injury, sickness or disease,” is ambiguous as applied to the potentially progressive physical ailments alleged by Peterman. As was recognized in a predecessor to Keene, there is a “clear distinction between when bodily injury occurs and when the bodily injury which has occurred becomes compensable.” Forty-Eight Insulations, 633 F.2d at 1223. Since the Peterman complaint alleged exposure to, ingestion and use of water contaminated with a highly-dangerous chemical capable of causing severe physical damage, there were sufficient allegations of personal injury to render the complaint at least potentially within the policy’s coverage.

Reliance could have easily tailored the language in its otherwise standard policy so that it would more accurately reflect the coverage it intended to provide. Given the nature of Techalloy’ business, this should have been one of Reliance’s more apparent concerns. Precision in delineating the confines of personal injury would have eliminated all ambiguity and would have alerted Techalloy to the restrictions so that the insured could have procured adequate coverage elsewhere.

B. Effect of the policy exclusion

We apply the same principles of construction stated earlier in assessing the viability of Reliance’s claim to the policy exclusion as a alternative basis for denial of coverage. In pertinent part, the Reliance policy excluded from coverage “personal injury or property damage arising out of the discharge ... release or escape of ... toxic chemicals ... or ... waste materials or other irritants, contaminants or pollutants into ... any water course or body of water,” unless such discharge was “sudden and accidental.” While we were compelled to interpret the meaning of a term whose application was ambiguous, if the language of a policy is clear and unambiguous, we must apply its plain and ordinary meaning, and not struggle to create ambiguity solely for the purpose of finding coverage where none exists. Monti v. Rockwood Ins. Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25 (1982). This is true even though exceptions to coverage are generally construed against the insurer. Miller v. Prudential Ins. Co. of America, 239 Pa.Super. 467, 472, 362 A.2d 1017, 1020 (1976).

Although direction from the record is not overwhelming, Techalloy addresses the issue of the exclusion in a footnote found in its statement of the case. Citing C.H. Heist Corp. v. American Home Assurance Co., 640 F.2d 479 (3d Cir. 1981), Techalloy contends that before Reliance could invoke the exclusion, it must know to a certainty that those facts alleged by Peterman could in no event support a finding that the alleged contamination was sudden and accidental. Thus, Reliance’s success at this point would be premature because the suit never developed further than the preliminary objection stage.

We do not agree that the pre-trial disposition of this case conclusively establishes insufficient factual development to the extent that it would preclude us from reviewing Reliance’s claim. Indeed, notwithstanding the early disposal of Techalloy’s complaint, we are able to conclude to our satisfaction, from those facts on record and all reasonable inferences deducible therefrom, that Reliance’s implementation of the exclusion is valid. At best, Techalloy could prove that the discharge was accidental. That alone, however, would not substantiate their position since the language of the policy unambiguously states that there will be no coverage for toxic discharge into the environment unless that discharge is both sudden and accidental. Turning to the allegations in the Peterman complaint, it is immediately apparent that Peterman did not allege a sudden event. In contrast, the allegations were directly the opposite, identifying the source of the problem as contamination which occurred on a “regular or sporadic basis from time to time during the past 25 years.”

We find Techalloy’s response to be weakened in two other respects. First, a careful reading of Heist and application of its analysis to the facts at bar does not leave us with the same impression as it did Techalloy. Second, the record reveals facts known to both parties as early as 1980 that support Reliance’s position to the degree of certainty which Techalloy claims is required.

In Heist, Heist Corp., the insured, sought a declaratory judgment against American, its insurer, for a determination of its rights under a policy after American refused to defend or cover Heist who was impleaded in a personal injury action. One basis for American’s refusal was that the policy excluded coverage for injuries resulting from the non-accidental discharge of toxic substances. The district court granted a summary judgment for Heist which required American to “cover” the third party action. American appealed, maintaining in part that “covering” the action in effect forced American to actually indemnify Heist though subsequent developments of the case may have proved that the exclusion did in fact apply. In accord, the court of appeals vacated that part of the lower court’s order, allowing American the opportunity to factually develop the applicability of the exclusion since “[a]ctual indemnification depended] upon the existence or nonexistence of facts not yet established.” Heist, 640 F.2d at 483.

A fatal difference between Heist and the case at bar is that in Heist, the complaint underlying the insurance dispute did not describe in detail the circumstances surrounding the incident. That lack of detail precluded the appeals court from considering the applicability of the exclusion. Instead, the court could only infer from the facts available that the complaint was potentially within the policy, thus the insurer was under the duty to defend its insured pending an actual establishment of facts by the insurer to support its claim to the exclusion.

Thus, while a factual evaluation of the exclusion was premature at the summary judgment stage in Heist, that is not a blanket determination which blindly applies with equal import in every situation. On the contrary, any similarity to Heist ends once we proceed past its procedural disposition since we are not faced with such unknown or unascer-tainable facts in the case at bar. The record below categorically provides sufficient factual allegations to support a finding of a non-sudden occurrence within the plain meaning of the exclusion. In addition to alleging a regular or sporadic discharge over a period of 25 years, the Peterman complaint also maintained that in May of 1979, Techalloy informed the community in which Peterman resided that their well water contained a dangerous level of TCE. Te-challoy had also been aware since April 28, 1980, that Reliance investigated the supposed pollution and from that date disclaimed any coverage for the discharge under the terms of the exclusion. Techalloy would have us judicially interpret a provision whose meaning here is unequivocal. Further, Techalloy offers no alternative interpretation of “sudden and accidental” which would render it ambiguous and capable of our interpretation.

We conclude, therefore, that although the allegations of personal injury in the Peterman complaint state a claim to which coverage potentially applies, we find that Reliance was not under a duty to defend Techalloy in the Peterman action because of the existence of the exclusion. The allegations disclosing the circumstances and nature of the chemical discharge explicitely negate any potential for finding a sudden event in order to render the exclusion inapplicable. Furthermore, despite the early dismissal of Techalloy’s complaint, there are sufficient facts on record to support a determination that the water contamination did not occur suddenly. The facts of this case afford us a sufficient basis upon which to affirm the demurrer.

Order affirmed.

      . For similar case discussion, see Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1982), reh’g denied, 455 U.S. 1009, 102 S.Ct. 1648, 71 L.Ed.2d 878 (1982), and Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981), reh’g denied, 455 U.S. 1009, 102 S.Ct. 1649, 71 L.Ed.2d 878 (1982).

      . See also Palace Laundry Co. v. Hartford Accident and Indemnity Co., 27 Conn.Supp. 222, 234 A.2d 640 (1967) (holding gossamer thin allegation of accidental bodily injury sufficient for purpose of engaging insurance company’s duty to defend).


author: ROBERTS, Judge:

text:
    487 A.2d 828
    Robert J. AUGOSTINE, Appellant v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed Dec. 31, 1984.
    Reargument Denied March 1, 1985.
    Petition for Allowance of Appeal Denied June 18, 1985.

      Ernest B. Orsatti, Pittsburgh, for appellant.
    H. Fred Mercer, III, Pittsburgh, for appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   ROBERTS, Judge:

Robert J. Augostine appeals an order granting summary judgment in favor of his no-fault insurer, appellee Pennsylvania National Mutual Casualty Insurance Co., on his claim for medical expenses and work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. At issue on this appeal is whether appellant’s claims were time-barred. We conclude that his claims were timely at least in part, and thus vacate and remand for further proceedings.

Reviewing the record in the light most favorable to appellant, as we are required to do on appeal from a grant of summary judgment, see Lane v. Schacht, 260 Pa.Super. 68, 74, 393 A.2d 1015, 1018 (1978) (en banc), we note the following facts. Appellant was injured while alighting from his employer’s truck in the course of his employment on September 23, 1975. Appellant’s unsuccessful prelitigation efforts to obtain payment from appellee culminated in a July 16, 1979 letter notifying appellee that he had retained counsel.

Appellant filed suit against appellee on August 9, 1979, and both parties moved for judgment on the pleadings. Appellee’s motion was granted, but a panel of this Court reversed and remanded on grounds that the availability of workers’ compensation did not preclude appellant from obtaining no-fault payments from his own carrier. See Au-gostine v. Pennsylvania National Mutual Casualty Insurance Co., 293 Pa.Super. 50, 437 A.2d 985 (1981).

Both parties subsequently filed motions for summary judgment, and appellee’s motion was granted on February 14, 1983. The trial court believed that appellant’s claim accrued upon “the refusal of [appellee] to entertain [appellant’s] claim,” and held the claim to be time-barred by section 106(c)(1) of the Act.

Section 106(c)(1) requires commencement of suit within two years of the date on which the victim “suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident.” 40 P.S. § 1009.106(c)(1). Appellant, relying upon this Court’s decisions in Myers v. USAA Casualty Insurance Co., 298 Pa.Super. 366, 444 A.2d 1217 (1982) and Murphy v. Prudential Property & Casualty Insurance Co., 312 Pa.Super. 236, 458 A.2d 602 (1983), argues that the date of “loss” should be July 16, 1979. This Court’s judgment in Murphy, which was based upon its earlier decision in Myers, was reversed by our Supreme Court after this summary judgment motion was entered. See Murphy v. Prudential Property & Casualty Insurance Co., 503 Pa. 528, 469 A.2d 1378 (1983).

In Murphy, the Supreme Court expressly rejected the Myers rationale, holding that section 106(c)(1) “requires a claimant seeking to recover the cost of an allegedly covered service to commence suit within two years of the date that the claimant knew or should have known that the service rendered was necessitated by the accident.” 503 Pa. at 532, 469 A.2d at 1380. The Supreme Court in Murphy imposed two criteria to determine the accrual date of a medical expense: when the medical service was rendered; and whether the claimant knew or should have known at that time that the service was necessitated by the accident. See id., 503 Pa. at 533, 469 A.2d at 1380. Since the trial court believed that the accrual date of appellant’s claims was the date of appellee’s refusal to pay, it did not consider whether appellant knew, or should have known, that the medical services he received were necessitated by the accident at the time he received them. The court must now, in the light of Murphy, reconsider the medical expense claims.

On the same day that it handed down its decision in Murphy, the Supreme Court determined when work loss benefits accrue. Applying the same principle it had enunciated in Murphy, the Supreme Court held in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983) that

“where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years from any time the victim ' suffers work loss as a result of the accident (b) within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000, and (c) not later than four years after the accident.”

503 Pa. at 541, 469 A.2d at 1384 (citations omitted). Accord Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 503 Pa. 547, 550-51, 469 A.2d 1388, 1389 (1983); Bortner v. CNA Insurance Co., 332 Pa.Super. 406, 409, 481 A.2d 679, 680-81 (1984). Although Kamperis, Guiton, and Bortner all dealt with post-mortem work loss benefits, our Supreme Court has made it clear that such benefits are considered as belonging to the victim’s estate, and thus are governed by section 106(c)(1). See Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 170-71, 455 A.2d 101, 103 (1982).

Applying the Kamperis rule to this record, it must be concluded that appellant’s work loss claim was timely. Appellant has not received any no-fault benefits to date. Exclusive of workers’ compensation benefits he has received, appellant’s accumulated work loss reached the $15,-000 statutory maximum on January 1, 1978. Under Kamperis, this date may be treated as the date on which appellant’s work loss claim accrued. Having brought his claim within two years of this date, January 1, 1978, and within four years of the date of the accident, September 23, 1975, appellant should not have been denied his day in court.

Accordingly, the order granting summary judgment in favor of appellee is vacated, and the case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.