author:
JOHNSON, Judge.
      TAMILIA, Judge, WIEAND, Judge,

text:
    612 A.2d 1360
    Janet Kirby McMAHON, a/k/a Janet K. Marshall v. Robert M. McMAHON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1991.
    Filed July 24, 1992.

      Michael S. Dinney, Bryn Mawr, for appellant.
    Lawrence F. Flick, Norristown, for appellee.
    Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
   JOHNSON, Judge.

Robert M. McMahon (Husband) appeals from an order which denied the petition to terminate his obligation to provide alimony, health insurance coverage, and a leased automobile to Janet Kirby McMahon (Wife). We are asked to determine whether Wife’s entitlement to these benefits terminated upon her remarriage. We are also asked to determine whether 401.1(c) of the Divorce Code, now 23 Pa.C.S. § 3105(c), precluded modification of these agreed-upon benefits even though that subsection became effective subsequent to the date(s) of the agreements.

We find that the trial court did not err in concluding that the agreements between Husband and Wife were incorporated into, but did not merge with, any of the decrees or orders of the court. The agreements were, therefore, properly construed in accordance with the rules of law generally applicable to contract construction. We also conclude that the trial court properly recognized the prohibition against modification found in subsection 3105(c) of the Divorce Code. Accordingly, we affirm.

The parties were married in 1976. Three children were born of the marriage, in 1980, 1983 and 1986 respectively. The parties separated on September 10, 1986, when Husband left Wife and the children. During 1987, the parties entered into four separate agreements regarding alimony, child support, custody and distribution of the marital property. The first agreement, dated March 31, 1987, provided for alimony, child support, and medical insurance coverage until the parties’ youngest child “reaches the age of twenty-one, is emancipated or finishes college whichever occurs last.” This agreement was amended by the parties on December 4, 1987 to include a provision whereby Husband agreed to provide Wife with a leased automobile and all related insurance and maintenance costs “for as long as he [Husband] is obligated to pay support.”

Wife filed a complaint in divorce on December 8, 1988, in which she requested that the court incorporate the March 31, 1987 agreement, as amended December 4, 1987, into the final decree of divorce. The parties subsequently entered into a stipulation on March 30, 1989 which provided for the agreement to “be incorporated into but not merge with the divorce decree entered.” The final decree of divorce, entered April 7, 1989, provided in part as follows:

AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED,____that the terms, provisions and conditions of____certain property settlement agreements] between the parties dated MARCH 31, 1987,____[and] DEC[.] 4, 1987 [are] hereby incorporated into this Decree and Order by reference as fully as though the same were set forth at length. Said agreement shall not merge with but shall survive this Decree and Order.

Wife remarried on June 25, 1989. Five days later, Husband petitioned the court to terminate his obligation to provide alimony, health insurance coverage and the leased automobile to (his former) Wife. At a hearing on the petition, the Master found the property settlement agreement had not merged into the divorce decree and was, therefore, not subject to modification. Husband filed exceptions and requested a hearing de novo. The Honorable William T. Nicholas, after examining the entire record and receiving oral argument, dismissed the exceptions by order on March 27, 1990, prompting this appeal.

We first examine Husband’s contention that Wife’s remarriage operated to terminate Husband’s obligations to provide alimony and other benefits. He directs our attention to Section 501 of the Divorce Code of 1980, now 23 Pa.C. § 3701, which provides in part:

§ 3701. Alimony
(e) Modification and termination. — An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.
(f) Status of agreement to pay alimony. — Whenever the court approves an agreement for the payment of alimony voluntarily entered into between the parties, the agreement shall constitute the order of the court and may be enforced as provided in section 3703 (relating to enforcement of arrearages).

23 Pa.C.S. §§ 3701(e), (f). Husband seeks to argue that since the Divorce Code provides that alimony automatically terminates as a matter of law upon remarriage, it was not necessary for the parties to provide for same unless they specifically intended that alimony would continue after remarriage. In advancing this contention, Husband fails to distinguish an award of alimony by order of court from alimony received under an agreement between the parties.

Wife correctly directs our attention to Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), wherein this court, sitting en banc, recognized the distinction and stated:

We, therefore, hold that any agreement which speaks of incorporation but rejects merger was intended by the parties not to be brought under the provisions of sections 401, 501(e) and (f) [now 23 Pa.C.S. §§ 3701(e) and (f) ] and 503 for the enforcement of separation agreements. Only by an Order which does not reject merger, or required court enforcement of the agreement, does it become part of the decree and have the effect of an Order. By renouncing merger and failing to have language in the decree requiring enforcement as a court Order, the contract survives.

378 Pa.Super. at 493, 549 A.2d at 165. See also, D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990); Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990); compare Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985) rev’d and remanded on other grounds 515 Pa. 288, 528 A.2d 146 (1987).

In this case, the parties willingly stipulated that the property settlement agreement would survive the divorce decree as a separate contract. The divorce decree states on its face that the agreement is incorporated by reference but does not merge with it. As such, we cannot interpret this agreement as an order of court, as Husband suggests, but we must respect the agreement as a separate and independent contract which survived the divorce decree. Here, Wife’s right to payment is not based on an award but is instead based on the signature of Husband to a contract. Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985). When an agreement is entered for a specific amount for a stated period of time, without conditions for modifications or termination, it cannot be presumed that the parties intended the statutory bar or termination sections to apply. Woodings v. Woodings, 411 Pa.Super. 406, 601 A.2d 854 (1992). This contract is therefore not subject to the provisions of 23 Pa.C.S. § 3701(e) and (f) which require automatic termination of court-ordered alimony upon remarriage by the alimony recipient.

We now examine the contract itself to determine if the parties provided for the termination of alimony upon Wife’s remarriage. In the present case, there has been no allegation of fraud or that the agreement was other than freely negotiated between the parties. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990); Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991).

The agreement states in pertinent part:

Husband will draw a gross salary of $1,750.00 per week commencing April 3, 1987. From said salary of $1,750.00 per week, $791.00 shall be paid to wife and approximately $384.00 net will be left for husband. Of that which is to be paid to wife fifty percent shall be deemed alimony and 50% shall be deemed child support and shall be paid to wife by husband until the youngest living child reaches the age of twenty-one, is emancipated or finishes college whichever occurs last.

Here, the parties were free to include conditions in the agreement under which alimony payments would be terminated. In fact, the parties, in one sentence, provided for the termination of both alimony and child support payments to Wife when the parties’ “youngest living child reaches the age of twenty-one, is emancipated or finishes college whichever occurs last.” While the agreement is silent as to any other circumstances which would cause Husband’s payments to Wife to cease, it is clear that the parties could have enumerated other conditions terminating such payments, if they so chose.

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties’ understanding. Van-Kirk v. VanKirk, 336 Pa.Super. 502, 505, 485 A.2d 1194, 1196 (1984). The Court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 209, 505 A.2d 601, 603 (1985). Upon examination of the agreement, we find the terms of the agreement clearly indicate that payments from Husband for alimony and child support will cease only upon the happening of one of the three contingencies enumerated above. There is no indication on the face of the agreement that the parties intended remarriage of the Wife to terminate Husband’s payments and we are not free to construe the agreement to include such terms. We accordingly find no error in the trial court’s denial of Husband’s petition to terminate alimony.

Next, Husband contends that the trial court erred in its application of 23 Pa.C.S. § 3105(c) because the parties entered into their property settlement agreement prior to the date that the Amendment was enacted. Husband argues that the trial court’s application of § 3105(c) was “retroactive” and therefore improper. We disagree and find that the trial court properly applied § 3105(c) and concluded that the support agreement between the parties was not modifiable.

23 Pa C.S. § 3105(c) provides:

(c) Certain provisions not subject to modification.—
In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

Husband maintains that the trial court applied § 3105(c) “retroactively” and this resulted in impairment of his substantive contractual rights. We conclude that in the present case, the application of § 3105(c) does not implicate issues of retroactivity. While there is a presumption against the retroactive application of statutes affecting substantive rights, a law is only retroactive in its application when it relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired. 1 Pa.C.S. § 1926 (Purdon Suppl991); R & P Services v. Commonwealth Department of Revenue, 116 Pa.Commw. 230, 541 A.2d 432 (1988). Substantive rights are those affected when the application of the statute imposes new legal burdens on past transactions or occurrences. DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990); Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corporation, 54 Pa.Commw. 376, 421 A.2d 521 (1980). However, where no substantive right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date. Brangs v. Brangs, 407 Pa.Super. 43, 595 A.2d 115 (1991). Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957).

This Court has previously addressed this issue in DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990). In that case, the appellant successfully argued that when the trial court modified an existing support agreement, it had acted impermissibly under § 3105(c), despite the fact that the agreement was signed prior to the date the Amendment was enacted. DeMatteis, 399 Pa.Super. at 434, 582 A.2d at 672. There, we held that § 3105(c) applied to prevent the modification of support agreements, even when the agreement predated the statute. Id. This Court found that rather than altering the contractual rights and obligations of the parties, the application of § 3105(c) served to preserve and protect the contract rights of the parties as they intended at the time of the signing of the agreement. Id.

In Jackson v. Culp, 400 Pa.Super. 519, 583 A.2d 1236 (1990), this Court again endorsed the applicability of § 3105 in a factual situation similar to the one in the present case. In that case, this Court applied the enforcement procedures found in § 3105(a) to a pre-1988 support agreement because such application would not alter the obligations of the parties. Id. There, we stated that the 1988 Amendment neither adds to nor subtracted from the substantive rights of the parties and as such is properly applied to agreements entered into by the parties prior to 1988. Id., 400 Pa.Superior Ct. at 523, 583 A.2d at 1238. In Jackson, we concluded that “[t]he 1988 Amendment to the Divorce Code [§ 3105] allows enforcement but not modification of an unmerged MSA [marital settlement agreement] under the Code.” Id., 400 Pa.Superior Ct. at 523, 583 A.2d at 1238. (emphasis in original).

While § 3105(c) was a newly enacted amendment in 1988, it was merely a codification of the existing Pennsylvania law. Under our common law, where a property settlement agreement is entered and is thereafter incorporated but not merged into the divorce decree, it remains a contract between the parties, in which the court has no involvement. Sonder, 378 Pa.Super. at 488, 549 A.2d at 163; VanKirk, 336 Pa.Super. at 506, 485 A.2d at 1197; Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). This means that without proper authorization on the face of the agreement, such contracts are not modifiable unilaterally by a court. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Sonder, 378 Pa.Super. at 489, 549 A.2d at 162. Yet, if the agreement provides for court-ordered modification, a court under § 3105(c) remains free to modify the agreement. Through its application of § 3105(c), the trial court was following a statutory mandate which was based on the common law as it had developed up until the time of the Amendment. See Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985); VanKirk v. VanKirk, supra.; Litwack v. Litwack, supra.

In the present case, the support agreement was not merged into the divorce decree but was merely incorporated into it. The agreement therefore survived as a separate contract. The contract had no provision which permitted a court to modify it. When the trial court examined this agreement, and applied § 3105(c), it properly concluded that it was unable to modify the contract. If the trial court had applied existing case law, rather than the statute, to determine whether it could modify the contract, the result would have been the same. See e.g. Bell, 390 Pa.Super. at 530, 568 A.2d at 1299; D’Huy, 390 Pa.Super. at 517, 568 A.2d at 1293; Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981).

Here, the trial court, rather than applying § 3105(c) retroactively, merely followed the legislative intent articulated in the Amendment, which instructed courts to apply it immediately. In this case, Husband has not been deprived of substantive rights nor have different legal burdens been imposed upon him through the application of § 3105(c). Husband and Wife continue to enjoy the same rights under the contract as they did at the time of its signing. They also enjoy the same rights as they would if the trial court were constrained to apply the law as it existed before the 1988 Amendments to the Divorce Code. While Husband contends that he is deprived of his contract rights through the application of § 3105(c), he fails to direct us to any authority which indicates that absent the application of the Amendment, his obligations under the contract would have been subject to unilateral termination by the trial court. We therefore find that § 3105(c) controls and that the trial court properly applied the Amendment in its determination that the agreement was not subject to modification.

Accordingly, for the foregoing reasons, we affirm the order of the trial court.

Order Affirmed.

TAMILIA, J., files a concurring and dissenting opinion, in which OLSZEWSKI, J., joins.

WIEAND, J., files a dissenting opinion, in which DEL SOLE, J., joins.

TAMILIA, Judge,

concurring and dissenting:

I concur in the result reached by the majority as I believe the agreement entered by the parties clearly established an intent to provide support for the children and alimony for the wife until the youngest child was emancipated and/or completed college training. It is to be presumed that the parties entered into the agreement as equals, fully represented by counsel and with full knowledge of both statutory and common law. Despite provisions in the Divorce Code, 23 Pa.C.S. § 3706, Bar to alimony, which prohibits an award of alimony where the petitioner cohabits with a person of the opposite sex (here, remarriage) and 23 Pa.C.S. § 3701, Alimony, subsection (e), Modification and termination, which states in pertinent part: “Remarriage of the party receiving alimony shall terminate the award of alimony[,]” the agreement is binding and is not subject to these sections since the agreement does not constitute an award of alimony. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), alloc. denied, 517 Pa. 631, 539 A.2d 811 (1987), held that the wife’s remarriage did not effect an award of alimony pendente lite although 23 P.S. § 507 (now section 3706) precluded any award of alimony. In D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990), alloc. denied, 525 Pa. 646, 581 A.2d 572 (1990), monthly payments toward alimony were not terminated upon remarriage of the wife as they were construed to be part of property distribution. More to the point is Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990), which held a separation agreement, which made no provision for cessation of alimony payments upon cohabitation with the opposite sex by the recipient spouse, was not controlled by section 507 (now section 3706). This Court held:

Clearly, the rights and obligations of the parties in many areas affected by the dissolution of a marriage can be determined and altered by private agreement despite the existence of specific statutory provisions which would operate in the absence of such agreements. For instance, while this Court has found that the Divorce Code does not authorize the award of alimony to extend past the payor’s death, the parties may voluntarily agree otherwise. Chaney v. Chaney, 343 Pa.Super. 77, 86-87, 493 A.2d 1382, 1387 (1985). See also Myers v. Myers, 375 Pa.Super. 351, 544 A.2d 506, 508 (1988) (parties can contract to have support obligation of payor spouse survive him and bind the estate). Likewise, separation agreements which make no provision for the cessation of alimony payments upon cohabitation with the opposite sex by the recipient spouse cannot be avoided by the payor spouse despite the fact that the Divorce Code would have “awards of alimony” terminate upon such an occurrence. 23 Pa.C.S.A. § 507 (Purdon Supp.1990). Moreover, although the Divorce Code clearly manifests a policy against “double support” in § 507, that policy will not overcome the validity of an otherwise unimpeachable separation agreement. See VanKirk v. VanKirk, 336 Pa.Super. 502, 504-06, 485 A.2d 1194, 1196 (1984); Litwack v. Litwack, 289 Pa.Super. 405, 409-11, 433 A.2d 514, 516 (1981).
These cases reflect the recognition that generally parties have great latitude in directing the resolution of disputes upon the dissolution of marriage. Assuming that there is no evidence of fraud or overreaching, courts are extremely tolerant of a variety of separation and other agreements affecting marriage and divorce.

Id., 400 Pa.Superior Ct. at 1338, 582 A.2d at 1338.

The majority is correct in holding that the separation agreement in this case, pursuant to Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), was not merged with the divorce decree and stands as a contract which is enforceable independent of and unaffected by the Divorce Code. As such it may not be altered or modified except by agreement of the parties.

Having said the above, it becomes evident that the majority went beyond what was necessary or permissible in deciding that 23 Pa.C.S. § 3105, Effect of agreement between parties, was applicable. That section, in pertinent part, provides:

(c) Certain provisions not subject to modification.— In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

In this case, as in DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990), the Court relies on section 3105(c) when it is not relevant because the unmerged agreement does not rely upon the Divorce Code for its efficacy, but on the law of contract. Even if the contract was merged into the decree, section 3105(c) would not apply because of the statutory prohibition contained in the Divorce Code, which rules out the majority’s application of statutory construction in determining the retroactive nature of an amendment. The Statutory Construction Act, 1 Pa.C.S. § 1921, Legislative intent controls, provides:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

Id. At the time the agreement went into effect (1987), section 3105(c) (added February 12, 1988 as section 401.1) was not in effect. Pursuant to 23 P.S. § 103, Construction, subsequent amendments to the Divorce Code could not alter the agreement of the parties entered into before the amendment. This is hornbook law and simply affirms the sanctity of contracts protected by our Federal and State Constitutions. My dissent filed in DeMatteis, supra, is precisely on point and is set forth as follows:

Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), en banc, as acknowledged by the majority, required that this agreement be enforced as a contract but it then goes on to conclude, unnecessarily, for the purpose of the result, that section 401.1 may be retroactively applied to an agreement entered into prior to the amendments of 1988. The agreement provided that it could not be unilaterally modified and since it retained its identity as a contract, it could not be modified as a court Order by the court. The discussion by the majority concerning the retroactivity of section 401.1(c) is, therefore, irrelevant. In addition, it is erroneous since an amendment to the Divorce Code which follows the effective date of an agreement may not apply to that agreement. Contracts have been held inviolate by the federal and state constitutions and may not be altered by legislative provisions which would, in effect, deprive the parties of property rights without due process of law. In Nessa v. Nessa, [399] Pa.Super. [59,] 581 A.2d 674 (1990), we applied Sonder, supra, to hold that a contract such as this was not to be subject to alteration by Order of court. There, we also held:
[T]his agreement is not affected by amendment to the Divorce Code § 401.1(c), added in 1988, ... as the agreement predated the amendment. The Divorce Code at 23 P.S. § 103 Construction, provides:
This act shall not affect any marital agreement executed prior to the divorce agreement executed prior to the effective date of this act or any amendment or modification thereto.
Id., 399 Pa.Superior Ct. at 65, n. 2, 581 A.2d at 676, n. 2. While the result of the majority is correct, the discussion regarding section 401.1(c) is in error, unnecessary for the result, and in direct conflict with Sonder. I, therefore, dissent to the discussion and analysis concerning the retroactive effect of section 401.1(c).

Id., 399 Pa.Superior Ct. at 437, 582 A.2d at 674 (emphasis added).

If the clear unambiguous terms of 23 P.S. § 103 were not sufficient, 1 Pa.C.S. § 1926, Presumption against retroactive effect, would be controlling. “No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” Id. The majority’s adoption of the rationale of the majority in DeMatteis on the retroactivity issue, in the face of the clear prohibition against retroactivity provided by section 103 of the Divorce Code, the clear legislative mandate requiring construction against retroactivity by section 1921 of the Statutory Construction Act because no ambiguity exists in section 103, and the presumption against retroactivity contained in section 1926 of the Statutory Construction Act, clearly establishes the error of that holding.

In summation, the majority in applying its section 3501(c) rationale is internally inconsistent because, pursuant to Sonder, the Divorce Code does not apply to this agreement and is in error because it may not apply section 3501(c) retroactively as the Divorce Code prohibits such an application. Because it is likely there are hundreds of such preamendment agreements in effect, our correct resolution of this issue at this time is essential to provide the proper interpretation of those agreements for use by the bar, trial bench and appellate courts. I, therefore, dissent to the discussion or application of section 3501(c) to this case.

WIEAND, Judge,

dissenting.

I respectfully dissent. Neither the statutory law nor the parties’ agreement in this case warrants a continuation of alimony payments to wife-appellee following her remarriage.

The Divorce Code, at 23 Pa.C.S. § 3701(e) and (f) provides as follows:

(e) Modification and termination. — An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.
(f) Status of agreement to pay alimony. — Whenever the court approves an agreement for the payment of alimony voluntarily entered into between the parties, the agreement shall constitute the order of the court and may be enforced as provided in section 3703 (relating to enforcement of arrearages).

Pursuant to these provisions, an order requiring the payment of alimony, whether entered pursuant to agreement of the parties or after an evidentiary hearing, is enforceable by any of the means provided by 23 Pa.C.S. § 3703, including attachment and contempt. An order awarding alimony, however, terminates upon remarriage of the party receiving alimony. Upon remarriage of the party receiving alimony, all vestiges of the prior marital relationship have come to an end and a new relationship, with all the rights and duties inherent therein, has begun.

I am in full agreement with the majority that the parties may contract for the payment of alimony or spousal support even after the party receiving such payments has remarried. Before an agreement for the payment of alimony can survive remarriage of the party receiving such payments, however, such an intent must appear clearly and unambiguously. An arrangement contrary to the policy clearly expressed and adopted by the legislature at 23 Pa.C.S. § 3701(e) should not readily be inferred from imprecise contract language. Where an agreement is silent with respect to whether payments of alimony shall survive the remarriage of the party receiving alimony, the law may assume that the parties intended to contract consistently with policy expressed by the legislature.

As a general rule, the interpretation of a written contract is a matter of law to be made by a court. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 201, 519 A.2d 385, 390 (1986); Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983); Kardibin v. Associated Hardware, 284 Pa.Super. 586, 595, 426 A.2d 649, 654 (1981). In making such an interpretation, the court’s paramount concern must be to effectuate the intent of the parties. Commonwealth, Department of Transportation v. Manor Mines, Inc., 523 Pa. 112, 119, 565 A.2d 428, 432 (1989); Lower Frederick Township v. Clemmer, 518 Pa. 313, 329, 543 A.2d 502, 510 (1988); Warren v. Greenfield, 407 Pa.Super. 600, 606-607, 595 A.2d 1308, 1311 (1991). This intent is to be gleaned from the unambiguous words which the parties have chosen to express their agreement. As expressed in Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 544 A.2d 1025 (1988):

The intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous, the intent is to be discovered only from the express language of the agreement. Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977). When the words of the contract are unequivocal, it speaks for itself and a meaning cannot be given to it other than that expressed, and there is no need to refer to extrinsic aids or evidence to determine the intentions of the parties. East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965).

Id., 375 Pa.Superior Ct. at 492, 544 A.2d at 1027-1028. See also: Walton v. Philadelphia Nat’l Bank, 376 Pa.Super. 329, 339, 545 A.2d 1383, 1388 (1988); Vankirk v. Vankirk, 336 Pa.Super. 502, 505, 485 A.2d 1194, 1196 (1984). Moreover, a written instrument must be examined as a whole. Marcinak v. Southeastern Greene School Dist., supra 375 Pa.Super. at 491, 544 A.2d at 1027; Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 429, 473 A.2d 139, 142 (1984). Similarly, when the parties’ agreement involves several written instruments, they are to be construed together as a whole. International Milling Co. v. Hachmeister, Inc., 380 Pa. 407, 417-418, 110 A.2d 186, 191 (1955).

In the instant case, the parties’ original agreement required husband to make weekly payments to wife in the amount of $791.00. With respect thereto, the parties specifically stated: “Of that which is to be paid to wife, fifty percent shall be deemed alimony and 50% shall be deemed child support and shall be paid to wife by husband until the youngest living child reaches the age of twenty-one, is emancipated or finishes college whichever occurs last.” By this language the parties identified the time when husband’s duty to pay child support should terminate and come to an end. However, there was nothing in the agreement expressing an intent that husband’s obligation to pay alimony was to end simultaneously with the termination of husband’s duty to pay child support. Presumably, therefore, payments of alimony were to continue so long as wife needed such payments to assist her in supporting herself. This need may have continued indefinitely for many years. It may have continued as long as she lived. The need clearly came to an end, however, when the wife remarried.

In Price v. Confair, 366 Pa. 538, 79 A.2d 224 (1951), the Supreme Court stated:

“[Contracts which do not fix a definite time for the duration of the relationship which they create are sometimes construed as providing for a reasonable time or some particular period inferred from the nature and circumstances of the undertaking. Illustrations are to be found in Weidman v. United Cigar Stores Co., 223 Pa. 160 [72 A. 377], Nolle v. Mutual Union Brewing Co., 264 Pa. 534 [108 A. 23], and Rossmassler v. Spielberger, 270 Pa. 30 [112 A. 876]; see also 4 Williston on Contracts (rev. ed.), section 1027A(3), p. 2852.”

Id. at 542-543, 79 A.2d at 226, quoting Slonaker v. P.G. Publishing Co., 338 Pa. 292, 296, 13 A.2d 48, 51 (1940). See also: Thomas v. Thomas Flexible Coupling Co., 353 Pa. 591, 597, 46 A.2d 212, 215 (1946); Straup v. Times Herald, 283 Pa.Super. 58, 68-69, 423 A.2d 713, 718-719 (1980). I would hold that under the circumstances of this case, a terminus of husband’s obligation to pay alimony to his former wife was intended by the parties to be the wife’s remarriage.

This interpretation is confirmed by the sentence in the parties’ agreement which follows the sentence requiring the payment of alimony. It is there provided that husband is “to provide Blue Cross and Blue Shield and major medical coverage ... during the period husband is obligated to pay support for wife and/or children.” This suggests that the parties differentiated between spousal support or alimony, on the one hand, and husband’s duty to provide child support, on the other. It negates any concept that alimony and child support were to be so linked together as to share the same terminus.

Husband’s contractual obligations to pay alimony and child support, the parties stipulated, were to be “embodied” in and become a part of a support order. Pursuant thereto, an agreed order was entered which “embodied” the agreement of the parties.

An action for divorce was subsequently commenced, and an amended order was made part of a decree in divorce entered on April 7, 1989. By this agreement, husband was also to provide wife with a leased automobile and related insurance and costs of maintenance “for as long as he is obligated to pay support.” This amended agreement did not purport to change the amount of alimony to be paid or the duration thereof. It merely spoke to the additional requirement of a leased vehicle “for as long as [husband] is obligated to pay support.”

A careful reading of the parties’ agreement suggests that they loosely equated alimony with spousal support and spoke interchangeably of the two. In doing so, however, they clearly distinguished alimony and/or spousal support from husband’s duty to provide child support. Although specifically defining the duration of child support, at no time or place in their agreement did the parties suggest expressly or by inference that husband’s duty to pay alimony was to continue after wife’s remarriage.

I would hold, therefore, that the appellant-husband’s obligation to pay alimony came to an end when his former wife remarried. I reach this result because of the clear expression of legislative intent found at 23 Pa.C.S. § 3701(e) and also because my interpretation of the parties’ agreement confirms that the parties did not contemplate a requirement in excess of that provided by statute. Specifically, the agreement contained no provision that husband should continue to pay alimony even after wife remarried. I would reject any rule which suggests that an agreement to pay alimony continues after remarriage of the party receiving alimony unless the parties expressly provide otherwise in their agreement. I would hold, rather, that agreements for alimony must be interpreted consistently with the terms of 23 Pa.C.S. § 3701(e) unless the parties specifically provide that alimony payments shall continue even after the party receiving alimony payments has remarried. The burden of proving an intent contrary to the policy pronounced by the legislature should be on the party so asserting.

I would also hold, pursuant to the terms of the parties’ agreement, that husband’s duty to provide wife with medical coverage and a leased vehicle came to an end when wife remarried. These obligations were to continue for as long as husband was required “to pay support.” The reference to husband’s duty to pay support, in my judgment, was intended to refer to husband’s obligation to pay spousal support or alimony. When the duty to pay alimony came to an end because of wife’s remarriage, husband’s obligation to provide wife with medical coverage and a leased vehicle also came to an end. Any other result appears to be so unreasonable and so punitive as to exceed any intent that I have been able to discern from the parties’ agreement.

Therefore, I dissent. I would reverse and vacate the order requiring appellant to pay continuing alimony.

DEL SOLE, J., joins.


source: Caselaw Access Project

author: KELLY, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    612 A.2d 1371
    UNITED NATIONAL INSURANCE COMPANY, Appellant, v. J.H. FRANCE REFRACTORIES CO., the Van Brunt Company, Mineral Industries, Inc. and Green Point Fire Brick Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1992.
    Filed July 27, 1992.

      Elizabeth W. Fox, Philadelphia, for appellant.
    Mark D. Turetsky, Norristown, for appellees.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether the trial court, sitting in equity, may properly enter a compulsory non-suit based on a statute of limitations defense; and if so, whether the trial court applied the proper limitations period. We find, first, that a trial court may apply a statute of limitations to determine the timeliness of an equitable action for rescission of a fraudulently obtained insurance policy. We also find that the trial court correctly applied a two-year limitations period, rather than a six-year limitations period. Therefore, we affirm.

The relevant facts and procedural history are as follows. J.H. France Refractories Company, The Van Brunt Company, Mineral Industries, Inc., and Green Point Fire Brick Co. (hereinafter, collectively referred to as “the insured”) manufacture refractory products, particularly fire brick and related items. In May of 1982, the insured’s officer, the person responsible for obtaining insurance coverage, contacted its agent and directed him to seek $5,000,000 worth of additional liability insurance coverage from a new carrier (rather than increasing coverage under an existing policy). At the time, the insured’s agent knew that:

(i) [the insured] had been sued by one Temple in 1979, who had alleged injury due to [the insured’s] asbestos-containing product; that Temple had mesothelioma; and that Allstate Insurance Company had refused to defend the action on the ground that asbestos-related conditions were not covered by its policy;
(ii) as a result of the lawsuit filed by Temple, ... France had produced [between 1968 and 1972,] a cement which contained 26 percent of asbestos fiber [, and] that [the insured’s] asbestos was alleged to be a hazardous substance which caused severe and even lethal injury to persons exposed to it;
(iii) [the insured] had brought a declaratory judgment action in 1980 or 1981 against Allstate Insurance Company because of its refusal to defend the Temple case;
(iv) at least twelve actions had been brought against [the insured] alleging injury due to exposure to [its] asbestos-containing product. One of these actions involved six plaintiffs and another named 24 plaintiffs. Each action demanded compensatory damages in excess of $10,000 and many sought damages in excess of $1,000,-000.

(Tr.Ct.Op. of 1/4/90 at 2). The insured’s agent contacted, through another agent (the intermediary agent), a third agent (the insurer’s agent) who issued policies of United National Insurance Company (the insurer).

In order to issue the policy, the insurer’s agent requested and obtained, from the insured’s agent (who obtained his information from the insured’s officer), information regarding asbestos. In response to the insurer’s agent’s questions, and on the application for insurance, the insured’s agent answered (at the insured’s officer’s direction) that there were no

incidents indicating exposures, such as noxious fumes or waste discharges, defective or recalled products, etc., which occurred prior to the date of this application which could cause injuries to persons or property during the period of coverage requested hereunder.

(Tr.Ct.Op. of 1/4/90 at 3). The insured revealed, however, that there were two $10,000 lawsuits involving its products. Based on this information, the insurer’s agent issued an excess insurance policy on behalf of the insurer. (Tr.Ct. Op. of 1/4/90 at 3). The policy at issue covered the period from June 3, 1982 through June 3, 1983.

Approximately one month after the policy became effective, the insurer’s agent asked the intermediary agent for additional information on the lawsuits mentioned on the insurance application. The insured’s agent advised the insurer’s agent that the first lawsuit involved

[a] claim ... against Bethlehem Steel by an employee for Workers Comp and Liability Coverage for some sort of lung condition. The employee ended up suing Bethlehem Steel and all the suppliers of any product to the steel. The insured in this case didn’t feel he was doing business with Bethlehem Steel.

(Tr.Ct.Op. of 1/4/90 at 4). The insured’s agent responded, with regard to the second lawsuit, that

[t]he second loss was very similar to the first loss. Again, [the insured] was enjoined [sic] with 20 other defendants. No verdict or evidence that they are involved has been proven to date.

(Tr.Ct.Op. of 1/4/90 at 4).

The policy remained in effect until June 3, 1983. The insured sought to renew the policy, and the insurer’s agent requested additional information on a “short form.” From information contained on the short form, and supplied by the insured’s agent, the insurer’s agent learned, on June 3, 1983, that: the insured had three (not two, as earlier reported) products liability cases involving $10,000; and the insured had produced, from 1968 to 1972, a cement containing 26 percent asbestos fiber, but it discontinued manufacturing this product in 1973. (Tr.Ct.Op. of 1/4/90 at 4). Based on this information, the insurer forwarded to the insured a $15,000,000.00 umbrella policy, covering the period from June 3, 1983 through June 3, 1984, which contained an asbestos and occupational disease exclusion. The insured refused to accept this policy.

On September 12, 1983, the insurer received notice of a claim against the insured based on exposure to the insured’s asbestos-based product. On October 28, 1983, the insurer’s president wrote to the insured’s president that the insurer considered the policy covering the period from June 3, 1982 through June 3, 1983 “void ab initio,” due to the insured’s “material misrepresentations” in obtaining the policy. (Tr.Ct.Op. of 1/4/90 at 5).

On October 30, 1987, the insurer filed suit against the insured requesting a rescission of its policy as of June 3, 1982, the policy’s starting date. The insurer alleged that the insured had fraudulently misrepresented that there were no asbestos-related claims against it. In response, the insured defended that the insurer’s action was untimely, based on a two-year statute of limitations and on the doctrines of laches, estoppel, and waiver. The case proceeded to trial without a jury.

Following the conclusion of the insurer’s case, the insured, arguing that the insurer’s action was untimely (based on the expiration of a two-year limitations period, the doctrine of laches, estoppel, and waiver) and that the insurer failed to produce evidence of fraud, moved for a non-suit. Relying on certain Findings of Fact and Conclusion of Law, the trial judge granted the insured’s motion for compulsory non-suit. The trial judge reluctantly found that, although the insurer had proved all of the elements needed to rescind the insurance policy based on the insured’s false and fraudulent misrepresentations, the insurer had failed to bring its action within the two-year limitations period governing common law fraud cases.

The trial judge denied post-trial motions filed by both parties. The insurer filed this timely appeal.

On appeal, the insurer raises the following issues for our review:

1. WHETHER THE DOCTRINE OF LACHES SHOULD APPLY TO AN EQUITABLE ACTION FOR RESCISSION OF A FRAUDULENTLY OBTAINED INSURANCE POLICY. (NOT ADDRESSED BY THE TRIAL COURT, WHICH INSTEAD APPLIED AN ERRONEOUS STATUTE OF LIMITATIONS.)
2. ASSUMING A STATUTE OF LIMITATIONS APPLIES TO AN ACTION IN EQUITY FOR RESCIS-
. SION OF A FRAUDULENTLY OBTAINED INSURANCE POLICY, AND ASSUMING THE CAUSE OF ACTION ACCRUED AFTER FEBRUARY 18, 1983, WHETHER THE APPLICABLE STATUTE OF LIMITATIONS IS THE SIX-YEAR CATCHALL STATUTE OF LIMITATIONS FOUND IN 42 Pa.C.S.A. § 5527? (ANSWER IN THE NEGATIVE BY THE TRIAL COURT, WHICH APPLIED A TWO-YEAR STATUTE OF LIMITATIONS FOR TRESPASS ACTIONS INVOLVING FRAUD UNDER 42 Pa.C.S.A. § 5524.)
3. SHOULD A CAUSE OF ACTION FOR RESCISSION OF A FRAUDULENTLY OBTAINED INSURANCE POLICY ACCRUE AT THE TIME WHEN THE PLAINTIFF COULD HAVE FIRST MAINTAINED THE CAUSE OF ACTION TO A SUCCESSFUL CONCLUSION? (ANSWERED IN THE NEGATIVE BY THE TRIAL COURT.)

(Appellant-Insurer’s Brief at 3).

Initially, we note that our standard of review in this challenge to the propriety of the trial court’s entry of compulsory non-suit is well established. We must “give the plaintiff the benefit of every fact and reasonable inference arising from the evidence, resolving all conflicts in the evidence in his or her favor.” Harvilla v. Delcamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989); Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). We can uphold the entry of a compulsory non-suit only “in a clear case where the facts and circumstances lead to one conclusion — the absence of liability.” Harvilla, supra, at id., 521 Pa. at 25, 555 A.2d at 764. See also Coatesville, supra, at id., 509 Pa. 559, 506 A.2d at 865.

The insurer first contends that the trial judge erred in applying a statute of limitations to determine the timeliness of its equitable action for rescission of a fraudulently obtained insurance policy. The insurer asserts that the doctrine of laches, not a statute of limitations, governs the timeliness of actions in equity; the insured’s failure to prove the prejudice element of the laches defense warrants a finding that its action for rescission is timely. We do not agree.

It is well-settled that “a party claiming the benefit of the doctrine of laches must demonstrate prejudice due to lapse of time” [between the time the plaintiff’s cause of action arose and its efforts to enforce it]. Kay v. Kay, 460 Pa. 680, 685, 334 A.2d 585, 587 (1975) (citations omitted). Thus, a laches defense has two elements: 1) a delay arising from the other party’s lack of due diligence, and 2) resulting prejudice. In re Francis Edward McGillick Foundation, 406 Pa.Super. 249, 264, 594 A.2d 322, 330 (1991) (appeal granted, 529 Pa. 649, 602 A.2d 860 (1992)) (citations omitted).

Equity courts in this Commonwealth have long employed the doctrine of laches to determine the timeliness of actions brought before them. See, e.g., First National Bank v. Lytle Coal, 332 Pa. 394, 3 A.2d 350 (1939). See generally Standard PA Practice § 79:39-79:50 (application of laches doctrine to actions in equity). Our courts have also applied statutes of limitation to actions in equity. See id. at § 79:43. The question presented in this appeal is whether a court sitting in equity may decide whether an action is timely based solely on a statute of limitation.

The laches doctrine has traditionally played a dominant role in timeliness determinations by our equity courts. For example, our Supreme Court has held that, with respect to actions within exclusive equity jurisdiction, an equity court was not compelled to apply a statute of limitations to determine whether a plaintiff brought his claim in a timely manner. Lurtherland v. Dahlen, 357 Pa. 143, 53 A.2d 143 (1947). However, equity courts would look to a statute of limitations when determining whether, within a laches discussion, the plaintiffs delay was reasonable. For example, in Elias v. Elias, 428 Pa. 159, 237 A.2d 215 (1968), our Supreme Court stated that “[ljacking fraud or concealment, the general rule is that laches follows the statute of limitations.” Id., 428 Pa. at 162, 237 A.2d at 217. In 1975, our highest court noted that a statute of limitations may not control the outcome of an equity court’s determination of the timeliness of an action before it, but may only provide guidance in determining, within a laches discussion, whether the plaintiff’s delay was reasonable. See Kay, supra, 460 Pa. at 685, 334 A.2d at 587 (emphasis added). This court, relying on Kay, has stated that statutes of limitation do not control in equity. See, e.g., Francis McGillick Foundation, supra, 406 Pa.Superior Ct. at 594 A.2d at 330 (equity court examining trustee wrongdoing not limit timeliness inquiry to limitations period). We have further held that a statute of limitations does not provide an affirmative defense in equity actions. Fuisz v. Fuisz, 386 Pa.Super. 591, 596, 563 A.2d 540, 542 (1989), reversed on other grounds, 527 Pa. 348, 591 A.2d 1047 (1991).

In 1976, our legislature enacted a Judicial Code within a new Title 42 of the Pennsylvania Consolidated statutes. See Act of July 9, 1976 (P.L. 586, No. 142), the “Judiciary Act of 1976.” Our lawmakers collected all civil and criminal statutes of limitation in chapter 55 of the Code. 42 Pa.C.S.A. § 5501, et seq. The provision governing the applicability of statutes of limitation stated that, as a general rule:

[a]n action, proceeding or appeal must be commenced within the time specified in or pursuant to this chapter unless in the case of an action or proceeding a different time is provided by this title or another statute or, in the case of a civil action or proceeding, a shorter time which is not manifestly unreasonable is prescribed by written agreement.

42 Pa.C.S.A. § 5501(a).

In 1978, our legislature amended § 5501 and added subsection (c), and, thereby, specifically provided that statutes of limitation do apply to equitable matters. 42 Pa. C.S.A. § 5501(c) states that:

[t]his chapter is applicable to equitable matters, but nothing in this chapter shall modify the principles of waiver, laches, and estoppel and similar principles heretofore applicable in equitable matters.

42 Pa.C.S.A. § 5501, 1976, June 9, P.L. 586, No. 142 § 2, effective June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53, § 10 (61.1), effective June 27, 1978 (emphasis added). Pursuant to § 5501, as amended, a trial court may determine the timeliness of an action in equity by reference to an applicable statute of limitations.

In amending the statute governing the applicability of the statutes of limitation, our legislature withdrew the foundation upon which the cases cited by the insurer, which relied on Kay, supra, rested. The trial court did not commit an error of law in applying a statute of limitation to determine the timeliness of the insurer’s action. Therefore, we conclude that the insurer’s first claim fails.

The insurer contends, through its second and third issues, that the trial judge applied the wrong limitations period. The insurer asserts that the trial judge should have looked to the six-year statute in 42 Pa.C.S.A. § 5527, not the two-year statute in 42 Pa.C.S.A. § 5524. The insurer argues, first, that its suit in equity for a rescission of the contract with its insured, is not one “sounding in trespass including fraud ...,” and therefore, 42 Pa.C.S.A. § 5524(7) does not apply. It also argues that its action accrued in 1982; the six-year catch-all statute in 42 Pa.C.S.A. § 5527, applicable to actions accruing prior to February 18, 1983, governs.

In order to address these issues, we must review the somewhat unique statutory situation at issue. This Court, in dealing with a similar issue, succinctly iterated the history of the statute of limitations for fraud actions:

The Pennsylvania legislature in 1976 enacted a new, all-inclusive limitation of actions statute. 42 P.C.S. § 5522-5527. This new statute, however, contained no express limitation on actions for fraud and deceit. In 1982, the legislature amended the Judicial Code to provide a two-year limitation period specifically for fraud and deceit actions. Id. § 5524(7). This amendment applies only to causes of action accruing after its effective date in February, 1983. Act No. 326, 1982 Pa.Laws 1409, 1440.

Gabriel v. O’Hara, 368 Pa.Super. 383, 395, 534 A.2d 488, 495 (1987). According to 42 Pa.C.S.A. § 5527, a residuary provision, any actions or proceeding not subject to a particular limitation period found elsewhere in chapter 55 must be brought within six years.

The insurer argues, initially, that, because it seeks rescission, and not money damages, its action is not one “sounding in trespass,” and thus, § 5524(7)’s two year limitations period does not apply. We do not agree.

Section 5524(7) applies to any “action or proceeding sounding in trespass, including deceit or fraud____” (emphasis added). The general definitions provision in Title 42 defines an “action” as “any action at law or in equity.” 42 Pa.C.S.A. § 102 (emphasis added). Thus, read in conjunction, absent a specific definition of “action” applicable to § 5524(7), or a clear indication that a contrary definition of “action” was intended for § 5524(7), the two year limitations period applies to “any action [in law or equity], sounding in trespass, including fraud.” 42 Pa.C.S.A. § 5524(7). This Court has held that “... any claim for fraud brought after February 18, 1983 is specifically governed by the language of section 5524(7)____” See Amodeo, supra, 407 Pa.Superior Ct. at 463, 595 A.2d at 1238. Thus, the two year limitations period applies to the insurer’s action to rescind the insurance contract based on fraud, if that action accrued after February 18, 1983.

A cause of action accrues “at a time when the plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Ass’n of Pennsylvania State College & University Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983) (citations omitted). In order to rescind an insurance policy for fraud, a plaintiff must prove:

(1) a false application statement;
(2) on a subject material to the risk to be insured against;
(3) the applicant’s knowledge that the statement was made in bad faith or was untrue.

See Allstate Ins. Co. v. Stinger, 400 Pa. 533, 541, 163 A.2d 74, 76-77 (1960); A.G. Alleback v. Hurley, 373 Pa.Super. 41, 52, 540 A.2d 289, 294 (1988). Here, the trial court found that the insurer established all of the requisite elements to rescind the insurance contract. The trial judge also found that the insurer was not charged with notice of the insured’s misrepresentation until 1983, when the insurer learned that there were outstanding asbestos-related claims against its insured. As a result, the trial judge held that the insurer’s cause of action accrued in 1983.

The insurer argues that the trial court erred in determining that its cause of action accrued in 1983. Instead, the insurer asserts that because the insured’s misrepresentations occurred in 1982, and because it (the insurer) received evidence of the misrepresentations in 1982, which could have lead it to discover the insured’s misrepresentation (which it failed to discover due to lack of diligence), its cause of action arose upon receipt of this information. The crux of the insurer’s argument is that the discovery rule, a rule developed to aid plaintiffs, ought to operate to prevent its claims from being time-barred. This argument misconstrues the purpose underlying the operation of the discovery rule.

The discovery rule is an exception to the general rule that,

a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period____ Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies and acts to toll the running of the statute.

Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 84-85, 468 A.2d 468, 471 (1983) (citations omitted). The discovery rule operates to toll or delay the running of the statute of limitations to aid a plaintiff who, “despite the exercise of due diligence” was unable to know of an injury or its cause. Id., 503 Pa. at 85, 468 A.2d at 471 (emphasis added). When applying the discovery rule, a court must first determine whether an injured party was diligent in discovering its cause of action. Id.

A discovery rule does not operate here to give the insurer the result it seeks: an earlier accrual date (before February 1983). First, the insurer argues that it would have discovered the insured’s misrepresentation if it had exercised due diligence. Only a diligent party may benefit from the discovery rule. See Pocono International Raceway, su pra. Second, the insurer wants a result-oriented discovery rule which would expedite the commencement of the limitations period in order to benefit a plaintiff whose cause of action, by virtue of an anomalous statutory situation, would be preserved if an earlier accrual date were applied. However, the discovery rule operates to delay (not accelerate) the commencement of a limitations period. Id., 503 Pa. at 85, 468 A.2d at 471. Therefore, we affirm the trial court’s determination that the insurer’s cause of action accrued, and the statute of limitations began to run, on June 3,1983.

Order Affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

Because Appellant/insurer’s action accrued in 1982 prior to enactment of the of the two year limitation period adopted in 42 Pa.C.S.A. § 5524, I would hold that Appellant’s action is governed by the six year limitation provisions of 42 Pa.C.S.A. § 5527 and is not time barred.

The Majority correctly recounts the three elements necessary to make a claim for rescission of an insurance policy based on fraud. Further, it appropriately accepts the trial court’s conclusion that the insurer was able to establish all the requisite elements. The Majority errs, in my view, when it then applies the discovery rule to Appellant’s cause of action.

It is clear from the facts that Appellant was harmed and that its cause of action accrued in 1982 when its insured made material misrepresentations in bad faith or which it knew to be untrue. Appellant’s right to institute and maintain its suit against the insured arose at that time, and it had a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which it could seek recovery and to then institute suit within the applicable statutory period. Appellant succeeded in meeting this threshold when it filed the underlying action in 1987, within the six year statutory period from the time when it had a right to institute suit. “The statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 468 A.2d 468, 471 (1983).

The discovery rule operates as an an exception to the general rule “and arises from the inability of the injured, despite the exercise of due diligence to know of the injury or its cause.” Id. The discovery rule, thus, acts as an aid to claimants, to enable the courts to apply its equitable principles where, despite the exercise of diligence, parties are unaware of their injury. Before applying this exception the court must be “presented with an assertion of applicability of the ‘discovery rule’ ” and then seek to determine whether the parties have satisfied the requirements of due diligence in ascertaining their cause of action. Id.

The Majority acknowledges the above principles, and dismisses Appellant’s argument by stating that “[o]nly a diligent party may benefit from the discovery rule.” The Majority concludes that because Appellant admits that if it had exercised diligence in 1982, when the statements were made by its insured, it would have discovered the misrepresentation, then it was not diligent and should not benefit from the discovery rule. Appellant, however, does not seek the equitable exception of the discovery rule to extend the time in which it can commence its action; rather, it seeks to apply the general rule which requires an action to be brought within the statutory period from the time when the right to institute and maintain the suit arose. Because Appellant had that right in 1982 and did use diligence in instituting its suit within the statutorily required 6 year period, Appellant’s claim should not be time barred. Appellant is not, as the Majority suggests, seeking to accelerate the commencement of the limitation period; it only seeks to apply the general rule without requesting an equitable exception for an extension. The Majority recognizes that the discovery rule was developed to aid Plaintiffs, yet it turns this shield, which operates to protect plaintiffs’ interests, into a sword to be used against a plaintiff who never sought its application.

Because I conclude that Appellant’s cause of action arose in 1982 when its insured made knowing material misrepresentations when applying for coverage that resulted in the issuance of the insurance policy, I cannot join in the Majority’s decision.

      . At the time, the insured possessed $5,000,000 of primary liability coverage under a policy issued by Allstate Insurance Company and $5,000,000 of “umbrella” coverage trader a policy issued by Twin City Fire Insurance Company.

      . The insured could obtain the coverage provided under the excess policy only after exhausting its primary and umbrella policies obtained from other insurers.

      . As a result of its decision, as noted by the trial judge, the policy remains in effect, and the insurer must provide coverage thereunder, despite the insured’s fraud in obtaining the coverage.

      . We note that, as correctly stated by the insurer, the trial court’s decision in this regard involved a conclusion of law, not binding upon an appellate court. See Amodeo v. Ryan Homes, Inc., 407 Pa.Super. 448, 454, 595 A.2d 1232, 1235 (1991).

      . The Fuisz court did not rely on Kay when it stated that laches, not the statute of limitations, is the proper affirmative defense for attacking the timeliness of an equity action. In support of that statement, the Fuisz court cited Ritter v. Theodore Pendergrass, 356 Pa.Super. 422, 514 A.2d 930 (1986). 386 Pa.Super. at 596, 563 A.2d at 542. However, a close examination of the Ritter decision reveals that the court’s objection to the application of a statute of limitations defense was purely procedural.
      The Ritter court noted that, in an equity action, a statute of limitations defense may not be raised through a preliminary objection, but the defense of laches may be. 356 Pa.Super. at 427, 514 A.2d at 933. See also Pa.R.CJP. 1017(b)(4), 1509(b). (In fact, a statute of limitations defense may not be raised at the preliminary objection stage, whether the action is at law or in equity. See Pa.RX.P. 1017(b)(4) (pleadings allowed at preliminary objections include demurrer, but not statute of limitations); Pa.R.C.P. 1030 (statute of limitations must be plead as affirmative defense in "New Matter’’); Pa.R.C.P. 1509(a) (party may plead preliminary objections in equity action as permitted by Rule 1017(b))).
      The Ritter court went on to say that "[ajlthough not strictly and technically applicable to action in equity, a court of equity will, by analogy, adopt and apply statutes of limitation." 356 Pa.Super. at 428, 514 A.2d at 934 (citations omitted). That court noted that courts of equity adopt statutes of limitation to avoid a situation where an action, though barred at law, would lie in equity. Id. (citations omitted). The Ritter comí, contrary to the Fuisz court's assertion that a statute of limitations has no place in an equity action, discussed the timeliness of the complaint in terms of a six-year statute of limitation, and by analogy, to the bar of laches, to determine the propriety of the lower court’s granting the appellees’ preliminary objections which raised the laches defense. Id. 356 Pa.Super. at 430-31, 514 A.2d at 935.
      The Ritter court was required to discuss the timeliness of the complaint in terms of the laches doctrine because the claim that the complaint was time-barred was raised in preliminary objections. 356 Pa.Super. at 427, 514 A.2d at 933. The Ritter court specifically declined to consider the appellees’ argument that the appellants’ claim was barred by the statute of limitations after it concluded that the statute of limitations defense was not properly raised. Id., 356 Pa.Superior Ct. at 427 n. 4, 514 A.2d at 933 n. 4. As discussed infra, a statute of limitations defense could not have been asserted as a preliminary objection. Thus, the discussion of the laches doctrine was procedurally, not substantively, required. Here, the timeliness argument was raised in a motion for non-suit, where a statute of limitations defense may be properly raised. Therefore, Fuisz, Ritter, and its progeny, are distinguishable from the instant case.
      The insurer also cited Beech v. Ragnar Benson, Inc., 402 Pa.Super. 449, 587 A.2d 335, appeal granted, 527 Pa. 627, 592 A.2d 1295 (1991), in support of its claim that a statute of limitations may not be applied in an equity action. The insurer’s reliance on this decision is misplaced.
      In Beech, this Court noted that laches, a "purely equitable principle!,] ... may not be invoked as a defense in a court of law,” id., 402 Pa.Superior Ct. at 453, 587 A.2d at 337, and that statutes of limitations govern the timeliness of actions at law. Id., at 454, 587 A.2d at 338. However, that case is factually distinguishable from the instant case. The appellant in Beech argued that because he requested both an equitable remedy (specific performance) and a legal remedy (money damages) in his breach of contract action, the trial court erred in dismissing his complaint based on laches. The appellant in Beech claimed that laches could not be applied to dismiss his claim for money damages. Id., 402 Pa.Superior Ct. at 453-54, 587 A.2d at 337-38. While conceding that laches may not be applied in actions at law, ' we rejected the appellant’s argument that his legal claim was viable, after concluding that the action was essentially a request for equitable relief, and was therefore subject to dismissal based on the equitable doctrine of laches. Id., 402 Pa.Superior Ct. at 453-56, 587 A.2d at 337-39.

      . We note here that the language in § 5501(c) regarding the principles of laches, estoppel, and waiver, does not alter our conclusion. Given its plain meaning, 1 Pa.C.S.A. § 1903, this language may be construed to mean that these doctrines continue to apply in equitable matters. In other words, contrary to the Kay court’s statement, a statute of limitation may control in equity, or, an equity court may apply the laches doctrine to determine the timeliness of an action before it. In fact, in the years following the amendment of § 5501, our courts have continued to employ the doctrine of laches. See, e.g., Francis McGillick Foundation, supra.

      . Our review of relevant case law reveals some conflict regarding whether a two-year statute of limitation or a six-year statute applies to actions for fraud accruing prior to 1983. In Gabriel, supra, this Court noted that “the court in A.J. Cunningham Packing v. Congress Financial Corp., 792 F.2d 330 (3d Cir.1986) held that the six-year ‘catchall’ state of limitations was applicable" to fraud claims that accrued after 1978 but before 1983. Gabriel, supra, at 396 n. 21, 534 A.2d at 495 n. 21. However, this Court, in Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610 (1981), upheld the trial court’s dismissal of a fraudulent misrepresentation action based on a finding that it was time-barred according to a two-year limitations period applicable to actions in tort. Id., 291 Pa.Superior Ct. at 150-51, 435 A.2d at 612. This Court has also applied a two-year limitations period to other actions based on contract. See e.g. Bender v. McIlhatten, 360 Pa.Super. 168, 520 A.2d 37 (1987) (two-year statute of limitations, 42 Pa.C.S.A. § 5524(3), not six-year residuary provision, applies to 1981 claim for tortious interference with lease negotiations). In addition, a federal court applying Pennsylvania law ruled that, prior to the 1982 enactment of § 5524(7), the limitation period for an action based on fraud was two-years as mandated in 42 Pa.C.S.A. § 5524(3). See Fickinger v. C.I. Planning, 556 F.Supp. 434, D.C. (1982). However, we conclude that the insurer’s cause of action accrued after February, 1983, and therefore, we need not resolve this dispute.

      . National cites Gabriel v. O’Hara, supra, for the proposition that certain types of “hybrid” actions, those which sound in both trespass and assumpsit, are subject to the six year statute of limitations. While that case does state that the six year limitations period of 42 Pa.C.S.A. § 5527(6) applies to private causes of action brought under the UTPCPL, the Gabriel court noted the “sui generis" nature of the Unfair Trade Practices and Consumer Protection Law in its decision to apply a six year statute of limitations. Gabriel, supra, 368 Pa.Superior Ct. at 394, 534 A.2d at 494. The instant case does not involve the UTPCPL, and is therefore distinguishable.

      . The insurer’s agent, in July of 1982, received information from the insured’s agent that the lawsuits filed against the insured involved "... some sort of lung condition."


author: ROWLEY, President Judge.

text:
    612 A.2d 1379
    Blair BURNS, Appellant, v. PENNSYLVANIA MANUFACTURERS’ ASSOCIATION INSURANCE COMPANY and Pennsylvania Manufacturers’ Corporation and John Madsen c/o Pennsylvania Manufacturers’ Corporation.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Sept. 8, 1992.

      James T. Vernile, Philadelphia, for appellant.
    Anthony J. Bilotti, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   ROWLEY, President Judge.

Blair Burns (hereinafter “appellant”) appeals from an order granting appellees’ petition for transfer of venue from Philadelphia county to Bucks county. Appellants contend that the trial court abused its discretion in transferring the case pursuant to the doctrine of forum non conveniens, and Rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure because material issues of disputed fact were not resolved prior to the court’s transfer order. After extensive review of the record and the law, we vacate and remand.

The cause of action giving rise to the instant appeal arose out of an alleged defamatory communication made in the course of investigating a worker’s compensation claim filed by appellant. The essence of the communication was that appellant was involved in the pornography business. Appellant claims that appellee Madsen published the communication to a doctor, his medical office staff, private investigators and their employees and to several other employees of the corporate appellees.

Appellees filed a petition to transfer venue to Bucks county, or alternatively to Montgomery county, contending that appellant and appellee Madsen resided in Bucks county, that the corporate appellees maintained files related to this case in Montgomery county, and that the cause of action arose in Montgomery county, but admitting that the corporate appellees were headquartered in Philadelphia county and that some witnesses and documentary evidence were located in Philadelphia. Conversely, Appellant maintains that the cause of action arose in Philadelphia, that the corporate appellees and all of the files they maintained related to the defamation claim (as opposed to the worker’s compensation claim) are in Philadelphia, and that a majority of witnesses to the publication of the defamatory statements are in Philadelphia such that venue should remain in Philadelphia for the convenience of both parties.

In the answer, appellant specifically stated that the factual bases for appellees’ transfer petition were in dispute and accordingly, requested denial of the petition, or in the alternative, an order compelling appellees to engage in discovery to resolve the disputed issues of fact. The trial court granted the transfer based on the petition and answer without addressing appellant’s request for Rule 209 discovery. Appellant contends that the court erred in failing to order appellees to take deposition testimony to support their claim that the cause of action arose in Montgomery county and that the files relative to this case are housed there.

We are aware that the standard of review for an appeal of a trial court order transferring venue is to determine whether the trial judge’s determination was an abuse of discretion. Brown v. Del. Val. Transplant Prog., 371 Pa.Super. 583, 538 A.2d 889 (1988). An abuse of discretion includes not only an error of judgment but also an error of law. Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992); St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mut. Ins. Co., 239 Pa.Super. 492, 497, 362 A.2d 1052, 1056 (1976).

We are also aware that a plaintiff/appellant should not be deprived of a choice of forum unless the defendant/appellees “clearly adduce facts that either (1) establish such oppressiveness and vexation to a defendant so as to be out of all proportion to plaintiff’s convenience____or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems. These private and public interest factors must weigh strongly in favor of the defendant before the court can disturb the plaintiff’s choice of forum.” Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, 832 (1989); Alford v. Phil. Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987).

While the trial court is capable of determining matters of public interest without supporting evidence, an “informed assessment of the private interests at stake and of the particular circumstances that affect the public interest often requires the court to resolve disputed issues of fact ...” Id., 366 Pa.Superior Ct. at 515, 531 A.2d at 795. This Court concluded in Alford that “[o]n petitions to transfer pursuant to rule 1006(d), the parties and the court must resolve all material issues of disputed fact through procedures established by Pa.R.C.P. 209.” Id., 366 Pa.Superior Ct. at 515, 531 A.2d at 795; see also, Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987).

There are several means by which this resolution can occur. First, pursuant to Rule 209(a) and (b), the petitioner must either “take depositions of disputed issues of fact” or “order the cause for argument on petition and answer.” Secondly, if the petitioner chooses to order the cause for argument rather than take depositions, the court may, pursuant to Philadelphia County Local Rule of Civil Procedure 140(D), order the parties to proceed as required by Rule 209 where the petition and answer present a factual dispute on material points. And finally, if the petitioner does not take Rule 209 discovery and the court does not order it, the court must, under Rule 209, consider as true all responsive allegations of fact in the answer to the petition. Alford, 366 Pa.Super. at 515, 531 A.2d at 795.

In the instant case, appellant and appellees disagree about where the cause of action arose and where the files relative to this action are located. These are material issues of fact which must be resolved prior to the entry of an order transferring venue on the theory of forum non conveniens. Therefore, we are constrained by Rule 209 and legal authority construing it, to conclude that the trial court was premature in transferring appellant’s cause of action. Accordingly, we do not express any opinion on the merits of the transfer, but rather vacate the transfer order and remand the matter for resolution of the disputed factual issues pursuant to Rule 209.

Order vacated and case remanded. Jurisdiction is relinquished.


author: KELLY, Judge:

text:
    612 A.2d 1382
    COMMONWEALTH of Pennsylvania v. Melvin JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Aug. 25, 1992.

      James G. Gault, Carlisle, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com.
    Before CIRILLO, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether common intent to commit or facilitate the commission of a felony or misdemeanor in the course of committing disorderly conduct is necessary to prove riot under 18 Pa.C.S.A. § 5501. We find that it is not and affirm.

The relevant facts and procedural history are as follows. On October 25 and 26, 1991, a riot broke out among the inmates at the State Correctional Institution at Camp Hill, Pennsylvania. After being informed that a riot was making its way toward the G-Block, Officer Keefer and two other officers locked themselves in a control room known as a “switchbox” to protect themselves from the rampaging inmates. Within five minutes, the walls of the switchbox were the only barrier separating the guards from the angry inmates. The mob of inmates battered the door of the switchbox, used electric shocks, and used acetylene torches to remove the caged officers from their refuge. While breaking into the switchbox, the inmates repeatedly told the guards that the guards were going to be raped and beaten. Appellant told Officer Keefer during the holdout in the switchbox that he was going to kill him. N.T. 6/12/90 at 54.

Appellant and another of the inmates, Anthony Arthur, were tried jointly and convicted of riot and terroristic threats. Appellant filed timely post-trial motions which were denied on July 23, 1991. On February 11, 1992, appellant was sentenced to fourteen months to seven years imprisonment for the riot conviction and one to five years imprisonment for the terroristic threats conviction. The sentences were ordered to run concurrently. This timely appeal followed.

On appeal, appellant raises the following issues for our review:

1. GIVEN THE ESSENTIAL ELEMENT OF THE OFFENSE OF RIOT IS PARTICIPATION IN GROUP ACTION, WHETHER THE SEPARATE OFFENSE OF TERRORISTIC THREATS MAY BE INVOKED AS THE UNDERLYING “FELONY OR MISDEMEANOR” WITHIN WHICH THE PARTICIPANTS INTENDED TO COMMIT OR FACILITATE THE COMMISSION OF IN A COURSE OF DISORDERLY CONDUCT FOR PURPOSES OF A CONVICTION UNDER 18 Pa.C.S. § 5501(1)?
2. WHETHER THE PRE-TRIAL PUBLICITY GENERATED AS A RESULT OF THE EXTENSIVE MEDIA COVERAGE OF THE OCTOBER 1989 RIOTS AT THE STATE CORRECTIONAL INSTITUTE AT CAMP HILL, PENNSYLVANIA, SAME BEING ADMITTED BY THE COMMONWEALTH, WARRANTED A CHANGE OF VENUE OR VENIRE GIVEN THE PRESUMPTIVELY PREJUDICIAL CIRCUMSTANCES PRESENTED IN THIS MATTER?

Appellant’s Brief at 4.

Appellant first contention is premised upon his assertion that to prove he was guilty of riot, the Commonwealth must prove not only that he intended to commit or facilitate the commission of a felony or misdemeanor, but also that two or more others with whom he committed disorderly conduct shared that intent as well. He reasons that the evidence established only that he intended to commit or facilitate the commission of terroristic threats and asserts that since such a crime is not accomplished by group action, the Commonwealth’s evidence was insufficient to prove that he was guilty of riot. We cannot agree.

Our standard for reviewing sufficiency questions has recently been set forth as follows.

In viewing the evidence, we remain mindful that credibility determinations were a matter solely for the fact finder below. Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). On appeal, we must examine the evidence in the light most favorable to the Commonwealth drawing all reasonable inferences therefrom. Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A.2d 590, 592 (1990); Commonwealth v. Ables, 404 Pa.Super. 169, 173-77, 590 A.2d 334, 336-37 (1991); Commonwealth v. Rue, 362 Pa.Super. 470, 476, 524 A.2d 973, 976 (1987); Commonwealth v. Sanders, 339 Pa.Super. 373, 378, 489 A.2d 207, 209 (1985); Commonwealth v. Robinson, 316 Pa.Super. 152, 155, 462 A.2d 840, 841 (1983); Commonwealth v. Combs, 298 Pa.Super. 527, 529, 445 A.2d 113, 114 (1982). If a jury could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict.

Commonwealth v. Berkowitz, 415 Pa.Super. 505, 609 A.2d 1338 (No. 1602 Philadelphia 1990, slip opinion, filed 5/19/92).

It is well settled that when construing a statute, its words are to be given their plain and ordinary meaning. 1 Pa. C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). The offense of riot is defined in § 5501(1) of the Pennsylvania Crimes Code:

§ 5501. Riot
A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct:
(1) with intent to commit or facilitate the commission of a felony or misdemeanor.

18 Pa.C.S.A. § 5501.

Contrary to appellant’s position on appeal, we discern nothing in the above language which requires proof of common intent. The language regarding the intent necessary refers only to the actor himself. Thus, the proof of group action contemplated is not the common intent to commit a felony or misdemeanor, but rather the actor’s participation with two or more others in a course of disorderly conduct. Any other interpretation of this statute would require a strained reading of the words to say the least.

Moreover, brief review of persuasive authority supports this interpretation. The subcommittee that drafted the relevant Pennsylvania Standard Jury Instructions explained that:

The second element of subdivision (1) of the instruction is worded on the assumption that the intent or knowledge requirements of subsections (1) and (2) as well as (3) of Crimes Code § 5501 apply only to the defendant and that, (except in cases where such intent or knowledge by other persons may be implicit in the requirement of group disorderly conduct,) it is enough if the defendant alone has the requisite intent or knowledge, compare Commonwealth v. Hayes, [205 Pa.Super. 338, 209 A.2d 38 (1965) ] (riot is a tumultuous disturbance of the peace by three or more persons assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner) with Commonwealth v. Abney [195 Pa.Super. 317, 171 A.2d 595 (1961) ] (assuming that a common intent is required for riot, it is only an intent to act in a violent and turbulent manner and such intent can be inferred from conduct; individual rioters may act for different reasons).[]

Pa.S.S.J.I (Crim.) § 15.5501 (1975) (emphasis added and in original). We, therefore, agree with the trial court that there is no requirement in the statute that the felony or misdemeanor be one typically thought of as conducive to group action. The Commonwealth established that appellant himself had the intent to commit a misdemeanor, i.e. terroristic threats, while participating with two or more others in a course of disorderly conduct. No more was necessary to prove appellant was guilty of riot as defined by our legislature. This claim must, therefore, fail.

Appellant’s second contention on appeal is that the widespread publicity of the riots tainted the local jury pool which warranted a change of venue or venire. Again, we disagree.

The standard of review for a denial of a motion for change of venue is whether there has been an abuse of discretion on the part of the trial judge. Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985). In determining when pre-trial publicity is so inherently prejudicial as to require a change of venue, the court should consider whether the pre-trial publicity was factual and objective or inflammatory and slanted; whether the pre-trial publicity revealed the existence of the accused’s prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendants; and whether the information is the product of reports by the police and prosecutorial officers. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). If the elements of prejudicial publicity are present and it is found to have saturated the community, it then must be determined whether there has been a sufficient “cooling off” period between the publicity and the trial. Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983).

After a careful review of the publicity, we find that it was not prejudicial in that it never specifically mentioned appellant. Although pervasive, the pre-trial publicity was factual and objective and did not consist of prejudicial, inflammatory reporting. Appellant’s argument that the media coverage of the riot was presumptively prejudicial because of its implication that the defendant had a criminal record is meritless. Whether or not members of the jury had learned of appellant’s criminal record outside of court, the Commonwealth would necessarily have made them aware of it at trial simply by adducing the underlying facts of this case. It mattered not, therefore, where or before what jury the trial was held. The “presumptive prejudice” to which appellant refers was unavoidable in the facts of this case, and therefore, not a valid basis to require a change of venue. The trial court did not abuse its discretion in determining that a change of venue was unnecessary.

Judgment of sentence affirmed.

      . It has long been held that group action is the essence of riot. Commonwealth v. Crawford, 334 Pa.Super. 630, 483 A.2d 916 (1984); Commonwealth v. McGavin, 305 Pa.Super. 528, 451 A.2d 773 (1982).

      . We note that although the common law embraces a "common intent” for riot, common law crimes have been abolished in Pennsylvania and the common law definition of riot is inapplicable to the question before us today. See Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991), allocatur granted, 529 Pa. 647, 602 A.2d 857 (1992).


author: MONTEMURO, Judge:

text:
    612 A.2d 1385
    READY FOOD PRODUCTS, INC. v. GREAT NORTHERN INSURANCE COMPANY and Chubb Group Insurance Companies, Appellants.
    Superior Court of Pennsylvania.
    Argued July 30, 1992.
    Filed Sept. 18, 1992.

      Peter T. Parashes, Philadelphia, for appellants.
    Mayer Horwitz, Philadelphia, for appellee.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entering judgment in favor of appellee, Ready Foods, Inc., and against appellants, Great Northern Insurance Company and Chubb Group of Insurance Companies, on the sole issue of liability notwithstanding an earlier verdict in favor of appellants.

Appellee is a manufacturer of certain dairy products, and had purchased from appellants a policy of insurance covering its pasteurizing equipment. The pasteurization process required that the product be conducted through a press, called a plate and frame heat exchanger, containing several temperature zones, which first raise the temperature of the dairy product to sterilize it, and then lower the temperature to cool the product prior to packaging. As it passes through the press, the dairy product is heated or cooled by means of approximately 250 metal plates which line the frame, and conduct the heat or cold provided by hot or cold water on the opposite side of the plate. In 1986, after complaints were received from customers, investigation revealed that the plates used during the final cooling process developed leaks due to pitting corrosion of their stainless steel surfaces, allowing psychrophilic bacteria to enter the dairy product, and contaminate it. Appellee unsuccessfully sought payment for its losses under the insurance policy, and after an initial verdict in favor of appellants, on post-verdict review the trial court reversed itself, and entered judgment in favor of appellee. This appeal followed.

Appellant has presented us with three issues on appeal, each assigning error to the trial court’s interpretation of a specific term in the policy, entitled “Boiler and Machinery Insurance,” which in pertinent part reads as follows:

INSURING AGREEMENT
In consideration of payment of the policy premium this policy covers risk of loss or damage to the insured’s property solely caused by or resulting from ... mechanical breakdown ... except as hereinafter excluded ... Section II. EXCLUSIONS TO THE INSURING
AGREEMENT
A. This policy does not insure against loss or damage caused or resulting from the following:
******
9. Water damage;
******
With respect to the following exclusions to the extent that a covered peril ensues, the Company shall be liable but only for such resulting covered loss or damage: ******
17. Wear and tear, depletion, gradual deterioration, corrosion or erosion of material ...

Appellant argues that the trial court erred in finding that the term “water damage” is ambiguous, and does not exclude appellee’s damages from coverage; in finding that the term “corrosion” does not exclude appellee’s losses from coverage; and in finding that the term “mechanical breakdown” does encompass the problem encountered with appellee’s machine. Before addressing these claims, which are in fact one argument that the trial court disregarded the plain meaning of the policy language, we note that

The threshold determination of whether a writing is “ambiguous” necessarily lies with the court. See, Hutchison v. Sunbeam Coal Corp., [513 Pa. 192, 519 A.2d 385 (1986); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). In making that determination, the court must assess the writing as a whole and not in discrete units. See, Musisko v. Equitable Life Ins. Co., 344 Pa.Super. 101, 496 A.2d 28 (1985); Huffman v. Aetna Life and Cas. Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984). A contract is “ambiguous” if “reasonably intelligent persons ... would differ regarding its meaning.” Musisko v. Equitable Life Ins. Co., supra 344 Pa.Super. at 106, 496 A.2d at 31. See also, Hutchison v. Sunbeam Coal Corp., supra; Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). Thus, we will not allow an overly-subtle or technical interpretation to defeat the reasonable expectations of the insured. See, Huffman v. Aetna Life and Cas. Co., supra. On the other hand, we will not convolute the plain meaning of a writing merely to find an ambiguity. See, Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984).

DiFabio v. Centaur Insurance Company, 366 Pa.Super. 590, 594, 531 A.2d 1141, 1143 (1987).

In reversing its original decision in favor of appellants, the trial court found that the term “mechanical breakdown”

would include any situation where a machine fails to function correctly, not merely one in which it has ceased functioning completely____ A reasonable party might, thus believe, that the heat exchanger unit suffered a “mechanical breakdown” when, by reason of the holes resulting from corrosion, it admitted contaminated water into the dairy product.

(Trial Court Opinion at 3).

With regard to the meaning of “water damage,” as the trial court points out, the policy nowhere defines this term. Like “corrosion,” it is a compensable event only to the extent that a covered peril ensues from its occurrence. Accordingly, the court found that since the policy language did not unequivocally and unambiguously exclude the damage at issue from coverage, the language must be resolved against the insurer in favor of the insured. DiFabio, supra.

Appellants argue that the water damage exclusion is applicable as the actual loss of the product occurred through its contamination by waterborne bacteria. And, since the term water damage is undefined, it is also unrestricted by any limitation except damage by flood. The problem with this argument is that it is being used by appellants to advance the notion that appellee’s losses are the monetary ones incurred in relation to credits given to customers for the returned (adulterated) dairy products. The policy, however, insures the machinery involved here. As appellee points out, no argument has been made that the corrosion, assuming it to have been the only damage, was caused by the action of water. Therefore appellant’s contention in this regard would fail even were the term water damage clear in its implications.

Further, appellants argue that the damage to the equipment is corrosion, another excluded peril, and that its meaning too is explicit. They contend that no mechanical breakdown occurred because any failure of the pasteurizing equipment to function properly was caused by corrosion. The corrosion is thus seen as both cause and effect, in order to avoid the consequences of the policy provision permitting reimbursement where corrosion is the cause of mechanical breakdown, and, as well, to posit the theory that mechanical breakdown must be seen as a distinct secondary event divorced from any generating factors, like corrosion.

Appellants have provided their own definition of mechanical breakdown as a condition which cannot exist absent a fortuitous failure of moving parts. (Appellant’s Brief at 25) The plates are stationary. Moreover, this definition allows the claim that because the contaminating seepage could have been avoided by proper maintenance or replacement of heat exchange plates, any damage suffered by appellee was predictable. Thus, according to this reasoning, appellee’s losses are noncompensable.

However, appellee’s actions with regard to the machinery are not the focus here. Even if they were, appellants failed to produce evidence to support the argument that appellee’s maintenance protocols were responsible for the damage.

We agree with the trial court, and conclude that the intent of the parties is not clarified by the language of the policy. Further, we need not define the terms involved here to find that appellant’s verbal gymnastics make clear the susceptibility of the exclusionary clauses to more than one interpretation. Applicability of the pertinent terminology is in fact unclear as definitions are nowhere contractually provided for the terms in question. Under such circumstances, we see no reason to disturb the decision of the trial court.

Judgment affirmed.

      . Because the parties stipulated to damages, the trial court’s finding is limited to the liability question.

      . The parties have stipulated that owner’s manuals from the equipment manufacturer were not received until two years after the ocurrence which underlies the action.